Revocation

Question 1

3 categories of revocation

Answer 1

Revocation by operation of law, By physical act, By writing. Even a will that testator has kually agreed not to revoke can be revoked, leaving beneficiaries with COA for breach.

Question 2

Revocation by operation of law– marriage

Answer 2

depends on marital law in the state
i. Most states, marriage following execution of will has no effect on the earlier will. –> if you’re getting married, change your will!
Some states/ UPC, new spouse takes intestate share as omitted spouse unless the will makes provision for the new spouse, the omission was intentional, or will made in contemplation of marriage.

ii. Common law—forced or elective share to protect surviving spouse from disinheritance. Applied CONTRARY to decedent’s intent, given even if decedent wants to cut that surviving spouse out.
Spouse chooses between the forced amount and what will says
2. Computation method varies among states
a. percentage
b. percentage + amount
c. percentage varies based on number of children
d. varies among length of marriage.

3. Augmented Estate—many states compute the share based on more assets than just those in the probate estate
   a. add a lot of non-probate assets. So testator can’t disinherit spouse through life insurance not payable to spouse, accounts payable to someone else, decedents share of property passed by survivorship rights, for ex.

iii. Community property marital state—if one spouse earns money, owned 50/50. no need for forced share.

Question 3

Revocation by operation of law– divorce after will execution

Answer 3

i. Majority rule—all provisions in favor of ex-spouse are void
1. will remains valid but naming ex-spouse beneficiary, guardian etc. void. Many states also void gifts to other ex-relatives like ex-step child or ex- mother in law.
ii. FINAL divorce required. not pending.
iii. Remarriage prevents automatic voiding.
iv. Passage of property
1. property left to ex-spouse passes as if ex-spouse pre-deceased the testator.

Question 4

Revocation by operation of law– pretermitted or omitted child

Answer 4

i. purpose: provide a share for children born or adopted after execution of the will, and testator omits the child. The law is assuming that testator would have made provision for the children had thought about it

1. child gets intestate share. Other gifts are abated to make up share for pretermitted child.
   ii. Potential to receive forced share
2. if born or adopted after will execution—most states give forced share
3. if born or adopted before will execution—only a few states provide forced share
   iii. Determination of forced share—jdxn vary on % to determine share
4. situations where states typically withhold or reduce a pretermitted child’s forced share.
   a. entire estate left to pretermitted child’s parent
   b. omission is intentional
   i. for ex: I intentionally make no provision for any child who may hereafter be born or adopted
   c. testator provided for pretermitted child in will – clear testator didn’t forget.
   e. beneficiary murders testator
   i. slayer statute or imposition of constructive trust.

Question 5

Revocation by physical acts

Answer 5

1) intent to revoke present at the time of physical destruction 2) mental capacity to revoke (no foul play by others) 3) physical act

i. Must have intent to revoke. accidental shredding doesn’t revoke. Must have at the time of revocation
ii. Mental capacity to revoke. No influence, duress, fraud
iii. Physical Act
1. Act required—burning, tearing, cancelling, etc.

2. Proxy revocation—testator may direct someone else to destroy or cancel will, but usually must be in testator’s presence by testator’s director.

b. Partial revocation by physical act – crossing out with initials. depends on the jdxn. State vary—some say never works. Some states—yeah it’s ok bc it’s what laypeople think.
Written amendment is allowed by states that allow holographic wills

Question 6

Revocation by subsequent will or codicil

Answer 6

the will or codicil must meet all formalities previously discussed

a. Express revocation: “ I hereby revoke all prior wills and codicils”
i. saying this is “my last will and testemant” doesn’t revoke, unless revoked by inconsistency. otherwise only revoked by inconsistent parts

b. Revocation by inconsistency.
i. If new will partially disposes of testator’s property, old will revoked only for inconsistent part

Question 7

Presumptions

Answer 7

a. Presumption of non-revocation.
i. If will found in normal location, AND no suspicious circumstances
b. Presumption of revocation if unable to produce the original or if found in damaged condition

Question 8

Revival

Answer 8

a. Fact pattern—
i. Testator executors Valid Will one
ii. Testator executes Valid will 2 which expressly revokes W1
iii. Testator then validly revokes W2

iv. Does W1 revive?
b. Jdxns divide
i. Revival approach= yes, W2 revocation means that W1 is revived. B
ii. No revival approach= revocation clause is effective WHEN EXECUTED. So W1 was revoked and NOT revived.
iii. Intent approach= depends on what evidence of intent we have

Question 9

Conditional revocation

Answer 9

a. Express conditional revocation– revoked if XYZ happens. rare
b. Implied conditional revocation “dependent relevant revocation”

i. Fact pattern
1. T executes VW1, testator validly revokes W1, testator executes W2 but it is invalid.
2. Does W1 remain? was destruction of W1 impliedly condition on validity of W2?
a. Romeo and Juliet revocation. Romeo only wanted to kill himself conditioned on Juliet being dead.
b. T only destroyed W1 on condition that W2 was good.
ii. Depends on T’s intent—would testator have preferred W1 over intestacy
1. The more similar W1 and W2 are, the more likely the court will apply DDR and keep W1 in place.
2. The more different W1 and W2 are, the more likely the testator would have preferred intestacy. W1 will be revoked.

Question 10

Protection of homestead, family allowance

Answer 10

a. Most states, Despite claims by creditors, decedent’s spouse and children are entitled to occupy the homestead for as long as they want despite the disposition of the residence in the descedent’s will
b. Family allowance—support during probate administration. Some states limit it o dollar amount, while others say reasonable amount for up to 1 year.
c. Exempt personal property—family can petition that some stuff (like furniture, heirlooms) be exempt from claims against the state.