Revocation Flashcards
Physical Act
(1) act + (2) simultaneous intent + (3) by T or in presence/direction
Writing Null + Void = valid
2 originals: revoke 1 = all
Mutilated and last in T’s possession: presume T mutilated w/ intent to revoke
Physical Act - Interlineation
writing in the lines
- not valid holograph if who AND what not in T’s handwriting (DRR Cure = if attempt was to increase gift)
- Edits to holographs ok bc T’s sig deemed adopted at time of interlineation
Physical Act - Cancellation
Cross-Out
Can’t cross out to increase co-ben’s gift; other still gets 1/2; crossed-out 1/2 goes to residuary/intestacy
Subsequent Testamentary Instrument
- Express
- Implied: totally disposes of estate
Revival:
A. Revoke #2 by physical act = any E admissible to see if T intended to revive #1
B. Revoke #2 by #3 = will #1 only revived if intent expressly clear in #3
Operation of Law
Pretermitted Kid
Omitted Spouse
Divorce/Annul
Op of Law - Pretermitted Kid
other gifts abated to give kid intestate share of estate and any trust
Exceptions: (1) failure intentional from face of instrument, (2) at death had other kid and gave state to parent, (3) provided for in other instrument
Op of Law - Omitted Spouse
other gifts abated to give spouse statutory share: 1/2 CP and Qusai-CP + intestate share of SP capped at 1/2
Exceptions: (1) failure intentional from face of instrument, (2) provided for in other instrument, (3) spouse signed waiver
Waiver: vol relinquishment of known right (signed writing + full disclosure of T’s finances + ind counsel) (no disclosure of counsel = still enforce if spouse should’ve had knowledge of finances or waiver in fact fair) (always unconscionable exception)
Op of Law - Divorce/Annul
gift to spouse revoked by law at event unless will expressly states otherwise (stays if will unchanged + remarried)
Op of Law - Ademption
Ademption by Extinction
Ademption by Satisfaction
Ademption by Advancement
Op of Law - Ademption by Extinction
specific gift - look to whether T intended gift to fail
- No intend fail: (1) securities change form by corp action, (2) conservator sells the asset, (3) eminent domain, insurance or installment K proceeds received post T’s death (during life: see if you can trace)
- before ademption: try to classify as general gift + then try to trace
Op of Law - Ademption by Satisfaction
down-payment on will devise
E: will says so, T writing at time of payment, devisee writing anytime, specific gift given - also extinction!)
- Satisfaction binds any issue who may take under Anti-Lapse Statute
- Value: FMV when devisee got (writing conclusive)
Op of Law - Ademption by Advancement
down-payment on intestate gift to heir apparent
E: T writing at time of payment, heir writing anytime
- Advancement does not bind issue under Anti-Lapse statute
- Value: FMV when devisee got (writing conclusive)
