Revocation and revival of wills Flashcards
Revocation
can occur At any time prior to death, even if the testator entered valid contract not to do so
Revocation by Subsequent instrument
Revocation of a will and any associated codicils can be express/implied by terms of a subsequent written instrument
revocation of a will also revokes all codicils to the will
Inconsistency
a later document controls and revokes prior inconsistencies
Harmless error for revocation
A signed writing that fails the requirements for a will results in revocation if clear and convincing evidence shows that the testator intended it as a revocation
Revocation by physical act
A will/codicil may be partially or completely revoked by a physical act of the testator (cutting, tearing, burning, etc) with the present intent to revoke
Does accidental destruction revoke a will ?
No- you need intent to revoke
Can a third party revoke ?
Yes, if at the testator’s direction and in the testator’s presence
Effect of a divorce or annulment
Revokes any provision in the testator’s will in favor of a former spouse; also revokes non probate transfers and death benefits unless federal law preempts
Dependent Relative Revocation
The testator’s revocation is disregarded if the revocation was conditioned on the effectiveness and validity of a new will or provision, and a valid new will or provision is not made
(the old will stands)
First will expressly revoked by second will- revocation does not revive the first will
revocation of second will does NOT revive first will
First will implicitly revoked by second will
revocation of second wil does revive the first will
Revival by re-execution or republication
if a later will is revoked, can re-execute the first will, execute a codicil to the first will, or show by clear and convincing evidence that the testator intended a signed writing to revive a revoked will
revival by marriage
If testator and former spouse remarry before the testator executes a new will or codicil, the provisions in favor of the spouse are revived
Timing
revived will is executed at the time of re-execution, republication, or revival
Lost wills
For a lost will there is a rebuttable presumption that the decedent destroyed the will with the intent to revoke it
