revocation and revival

Question 0

3 ways to validly revoke a will or codicil - list

Answer 0

operation of law
subsequent instrument
physical act

Question 1

Power of a testator to revoke a will or codicil

Answer 1

can be revoked any time
once revoked, is no longer valid
may revoke even if contracted to do otherwise
revocation is a testamentary act and is invalid if procured by fraud, duress, or undue influence or without capacity

Question 2

Revocation by Operation of law

Answer 2

marriage - does not invalidate premarital will but entitles spouse to elective share

divorce/annulment - automatically revokes any disposition, appointment, or nomination as executor or trustee

Question 3

Divorce effect on gifts in a prior executed will

Answer 3

gifts to spouses relatives are not affected by divorce or annulment
disposition is revived by remarriage to former spouse
living ‘separate and apart’ or having a decree of legal separation does not affect the will.

Question 4

Revocation by Subsequent Instrument

Answer 4

may revoke all or part of a prior will
by express terms
or by inconsistencies

Question 5

Subsequent testamentary document that does not expressly revoke a prior one is treated…

Answer 5

as a codicil to the first will

revokes the first will only to the extent it varies or contradicts the terms of the first will

Question 6

Writings that are not a will but complies with testamentary formalities

Answer 6

can revoke a will

Question 7

revocation of a will conclusively presumes

Answer 7

revoke all codicils thereto

however
revocation of a codicil does not revoke the will
even with evidence testator intended to do so

Question 8

Revocation by Physical Act

Answer 8

tearing, burning, cancellation or other means of destruction, revokes a will provided the act is (1) performed upon the will and act is (2) done with intent to revoke

no partial revocation by physical act

Question 9

Attempted Revocation leaves bequest unreadable

Answer 9

bequest may be determined under the lost will provisions

Question 10

Who may do physical act of revocation

Answer 10

may be done my someone other than testator
in testators presence
at testators request
in presence of 2 witnesses

Question 11

Revocatory act and the physical affect on the document

Answer 11

must physically affect a material portion of the document

not just note in margin “i revoke” will not suffice

write I revoke over signature will work

Question 12

Intent and act of revocation

Answer 12

must coincide

accidental act - will is still valid
intent with no act - will is still valid

Question 13

Testator revokes by physical act with requisite intent

then changes his mind

Answer 13

must comply with testamentary formalities to reinstate will

Question 14

Presumption and Inferences pertaining to lost or mutilated wills:

Will last in T’s possession, competent until death, and no duplicate found after death, presumption is…

Answer 14

testator destroyed will with intent to revoke

Question 15

Presumptions and inferences:

Will last seen in T’s possession - found in mutilated condition

Answer 15

inference T mutilated it with intent to revoke

Question 16

Presumptions and Inferences:

evidence will was inadvertently lost or destroyed

Answer 16

no revocation has occurred and will can be probated if proponents prove:

1. will was never revoked
2. validly executed
3. prove contents of will through draft, copy, or witnesses

Question 17

partial revocation by physical act

Answer 17

not validly revoked under NY law

attempted revocation is ignored

Question 18

What is the Doctrine of Dependent Relative Revocation

Answer 18

allows a revoked will to be un-revoked under some circumstances

not applied uniformly by courts in NY.

highest court has never ruled on viability of this doctrine

Question 19

dependent relative revocation may apply on proof of the following

Answer 19

1. will was revoked conditionally on a mistake
2. testators estate plan will be furthered by unrevoking will
3. should not be applied unless it would further the testators intent

does not require original will still be in existence so long as execution and terms of revoked will can be proven

Question 20

Revival

Answer 20

bringing a will back a prior will after revocation of current will have full operative effect at testators death if properly revived.

NY does not recognize the doctrine of revival. A revoked will can only be revived if that revoked will is re-executed with testamentary formalities

a codicil can republish prior will by reference because it is completed with testamentary formalities.