When can a testator revoke his will before his death?
Any time, even if he has signed a contract specifically stating that he won’t revoke the will (as long as the revoked will be denied probate) (could stlll be breach of contract claims, though)!
How can a will be revoked?
Wholly or partially, by:
- subsequent writings,
- physical destruction of the will, OR
- operation of law.
When will a subsequent instrument revoke a will?
When the revoking instrument is either a will or a codicil–AKA it meets the same formality requirements as a will.
Does a subsequent instrument need to explicitly revoke the will?
No, it can be express or implied by the terms of the subsequent instrument.
What if a subsequent instrument is not clear as to its effect on the will?
To the extend possible, the will and any codicils will be read together. However, if there are inconsistencies, then the later document controls.
If there is a residuary clause in the subsequent instrument, then the first will is revoked by inconsistency.
Any subsequent document that disposes of the entire estate of the testator will revoke the prior will by inconsistency.
How do you know if the subsequent instrument is a will or a codicil?
If it has a residuary clause, it is probably a new will.
If it does not have a residuary clause but the first document does, it is probably a codicil.
How can you physically destroy a will so as to revoke it?
- With the intent to revoke the will, EITHER
- Burning any portion of it OR
- canceling, tearing, obliterating, or destroying a material portion of it.
How do you “cancel” a will?
By defacing (crossing out) the language of the will.
What if you can’t find the will upon the testator’s death?
Then there is a rebuttable presumption of revocation UNLESS a duplicate original is found.
How does the attorney-client privilege apply to wills?
It does not apply to a lawyer’s testimony about the contents of a will.
How do you physically destroy a will if there are multiple copies of the will?
If you effectively revoke an executed original or duplicate, then all of the other copies will presumptively be revoked.
If you only destroy an unexecuted copy, then the will is not revoked.
Can a third party revoke on behalf of the testator?
Yes, if the revocation is
- at the testator’s direction;
- proved by two witnesses; AND
- in the testator’s presence.
How will a will be revoked by operation of law?
- Marriage
- The will is not revoked, but a surviving spouse will be entitled to their intestate share UNLESS the will provides a greater share to the surviving spouse already OR it appears the will was made in contemplation of marriage.
- Divorce
- All provisions favoring the ex-spouse are revoked UNLESS it can be shown that the testator intended for the will to survive divorce.
- N.B.: Remarriage to the ex-spouse will revive the provisions favoring that spouse!
- Pending divorce
- If the testator domiciled in Pennsylvania dies during divorce proceedings but before a decreee has een entered, then any provisions favoring the ex-to-be are revoked, PROVIDED THAT grounds for the divorce have been established AND that it cannot be shown that the testator intended for the will to survive a divorce.
- Separation
- Does not affect the rights of the spouse unless a complete property settlement is in place.
What if you want to add something to your will?
You can do so, but it won’t be given effect until the will is either
- re-executed (re-signed) OR
- republished (new document).
How can you rebut the presumption that a lost will was revoked?
- There is no evidence that the testator intended to revoke the will; AND
- there is “positive, clear, and satisfactory” evidence of
- the lack of intent to revoke AND
- the contents of the will.
How does revocation affect wills and codicils?
If you revoke a will, all codicils are revoked as well.
If you revoke a codicil, then the will is revived.
How do you revive a will?
Either by
- reexecution,
- republication by executing a codicil, OR
- dependent relative revocation (DRR)
Who has the burden when it comes to proving/disproving revival?
Those opposing the revival must prove that the testator did not intend to revive the original terms of the first will.
What is dependent relative revocation?
Allows for the revival of a will when
- the testator revoked a will under a mistaken belief of law or fact AND
- would not have revoked the will but for such belief.
