Revocation and Reviving of Wills Flashcards
When can someone revoke a will?
any time prior to death, even if the testator validly contracted not to
Can it be done orally?
no
subsequent instrument and revocation
revocation of a will and any associated codicils can be express/implied by terms of a subsequent written instrument
what can the Subsequent Instrument be?
a will or codicil
What else will a revocation of a will revoke?
all codicils to the will
can a later will or codicil impliedly revoke an earlier will?
yes. triggered by an inconsistency between the older will and the newer will
the later document controls and revokes prior inconsistencies
what requirements must the new writing meet?
if the new doc is a will, it must meet the requirements of an attested will or holographic will
does harmless error apply to a subsequent will that does not meet the requirements of a will?
yes. a signed writing that fails the req for a will results in revocation if CandC evidence shows that the testator intended it as a revocation
physical act and revocation
the testator may partially or completely revoke a will by physically destroying it with the present intent of revoking it
cutting, tearing, burning, obliterating, cancelling, destroying
what about accidental destruction
does not revoke a will
can a third party do it?
yes at the testator’s direction, in their presence
what is cancelling a will?
physically marking the will with a pen, marker, etc
what must the physical act do according to the courts?
requires a physical act “to touch the words of the will”
does harmless error apply to physical acts
NO
how does divorce/annulment affect this?
revokes any provision in the testator’s will in favor of a former spouse; also revokes nonprobate transfers and death benefits
what is dependent relative revocation (DRR)?
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; old will stands
what is a revival?
makes a revoked valid will effective again
what happens if first will expressly revoked by second will?
revocation of 2nd will does not revive the first will; the estate passes by intestacy
what happens if first will implicitly revoked by second will?
revocation of 2nd will does revive the first will
what happens if the revocation of the second will does not automatically revive the first will?
can still re-execute the first will, execute a codicil to the first will, or by show of CandC that the testator intended a signed writing to revive a revoked will
revival by remarriage
if the testator and former spouse remarry before the testator executes a new will or a codicil, the provisions in favor of the spouse are revived
timing
revived will is executed at the time of re-execution, republication, or revival
what happens if a will is lost?
there is a rebuttable presumption that the decedent destroyed the will with intent to revoke it
duplicate original
two executed copies of the same will; a duplicate may be admitted to probate
a photocopy
a copy cannot be admitted to probate, but can be used as proof of testamentary intent in the case of a lost or missing will
the attorney’s copy
valid evidence of the existence and terms of the will
who is the burden of proof on if the will is lost?
the burden is on the proponent to prove the will’s existence by clear and convincing evidence
