Revocation, Alteration, Etc--Wills 2 Flashcards
Ways to Revoke Will
1) Physical act/revocatory act on will
2) Later valid will that
3) Divorce
Codicil
Instrument executed subsequent to will that adds to, explains, or modifies it
Basically mini will–same reqs, can be attested or holographic
Can explicitly refer to orig., but not req.
Codicil = will republished as of date of codicil (ex. afterborn children–idea that if excluding now, deliberate)
Codicil valid =cures most defects in original will’s execution (esp. if incorporate by reference)
Revocation by Physical Act
1) Revocatory act on will= ex. burning, tearing, cancelling, obliterating or destroying the will or any part of it EVEN IF burn, tear, cancellation etc. did not touch any words
AND
2) Do w/ intent to revoke–key element
MUST be on original will, NOT copy (unless executed copy)
CAN direct someone else if in conscious presence (no line of sight OK, by phone not)
CAN’T be on sep. doc (ex “I cancel my prior will”) unless doc meets will reqs
CAN be partial revocation (ex. had will giving $10,000, cross out one 0 to make it $1,000)
Revival of Revoked Will
Generally– revoke–> cannot reinstate unless 1) re-execute will OR 2) codicil w/ incorp. by reference
Ex. CAN’T tape back together if tore up
CAN rewrite + execute, or write codicil saying “I revive Will A in all other respects”
General rules re: modification of will
General rule–Adding to will (even if small change)–addition itself must meet will reqs
Subtracting from will–can just revoke by physical act/writing on doc
Will says “Car to X,” cross out, write “give house to X”–revocation valid, but not addition, unless intent, capacity, formalities (but see DRR–might save prior grant)
Revocation By Subsequent Will
Can be in whole or in part (aka codicil)
Must be by valid subsequent will
Can be:
1) Explicit–ex. “this is the good one,” “all prior wills invalid,” etc.
2) Implicit–if contradict = presume conflicting prior part invalid (NOT non-conflicting parts)
Presumption of Revocation by Inconsistency
Later will makes complete disposition of estate = presume will intended to replace prior will (vs. supplement)
Ex. “Car to B, House to A, remainder to C,” later will doesn’t mention prior will but says “Z gets everything”/ “Car to L, house to M, remainder to B”
Can be rebutted by clear and convincing evidence
Doesn’t fully dispose of estate = only revoke inconsistent bit
Revocation By Divorce
If testator divorces after making will–all provisions in will in favor of/relating to ex-spouse are invalid, UNLESS apparent in will intended to survive divorce
Can be rebutted by c +c. evid.
Dependent Relative Revocation (DRR)
If revocation conditioned on mistake of fact or law–> courts will lift revocation IF what testator would likely prefer
(Ex. trying to give someone more by crossing out original clause and writing in new = conditioned on belief addition valid codicil)
“Law of second best”–trying to get as close as possible to T intent
Gen. only if clear what T wanted–courts don’t want to guess
Revocation + Copies
Unexecuted copy = no legal effect
Executed (signed) copy = effective revocation–treat like original, revokes original AND all other exec. copies
Standing to Challenge Wills
Only if challenger has beneficial interest if succeed–something to gain if win, lose if don’t
ALWAYS includes heirs, even if heir not named in prior will
Lost Wills
If will can be traced to T’s possession at death, but will missing or found mutilated after death –> presumption that destroyed by T w/ intent to revoke
Will not traced to T at death =no presumption
Will Contest
Where person w/ standing interested in the distribution of the estate objects to the admission to probate on grounds the will is not valid
Grounds to Contest Will
1) Lack of Testamentary Capacity
2) Undue Influence
3) Mistake
4) Fraud
5) Ambiguity (patent or latent)
Patent Ambiguity
Ambiguity on face of will (ex. “the University of Southern California, fondly known as UCLA”)
Once ambiguity established–can consider direct and circumstantial evidence of donor intent
Latent Ambiguity
Ambiguity not obvious on face, but which, due to lack of specificity, could apply to multiple people/ parties/property, etc. (ex. “my cousin Mike”–but have 4 cousins named Mike)
Once ambiguity established–can consider direct and circumstantial evidence of donor intent
In Terrorem Clause
“No-Contest Clause”–states that anyone contesting will is disqual. from taking under it
Allowed, but courts don’t like–gen. interpret narrowly
N/A if challenge re fraud
Majority–also N/A if had r. cause to contest OR good faith
Slayer Act
Any person who participates as a principal, co-conspirator, or accessory before the fact in the willful and unlawful killing of decedent may not acquire any property/benefit from D’s death
Treated as having predeceased decedent
MUST be willful–N/A if reckless, negligent, accidental, depraved heart
Includes intestacy, e. share, pensions, insurance, contracts, joint tenancy, etc.
Slayer Act + Joint tenancy
Becomes tenancy in common–no rt of survivorshp
Slayer Act + insurance/life policy
Proceeds to decedents estate or, if specified, to contingent ben. (doesn’t matter whether contingent ben. related to slayer)
Refusal to Support/Desertion
UPC–does NOT bar spouse unless definitive legal act (ex. property settlement)
Desertion/abandonment alone not enough–even if haven’t seen in 15 yrs, still married = retain rights
Effect of Divorce
All provisions of will re: ex-spouse invalid unless
1) Apparent in will intended to survive divorce OR
2) Testator remarries (i.e., new “my spouse”)
MUST have final decree of divorce
Pending divorce, separation = still married, not enough
Simultaneous Death (some/many states)
Whoever died first predeceased–even if only by an instant, still counts
Simultaneous Death (UPC)
Must have survived the decedent by 120 hours (5 days) to inherit–otherwise, deemed predeceased
Even if know for fact B survived A by 4.5 days–not 5 = deemed predeceased
Applies to joint tenancy, intestacy, children born after parent’s death (must survive own birth by 120 hrs)
