Revocation and Reviving of Wills

Question 1

When can someone revoke a will?

Answer 1

any time prior to death, even if the testator validly contracted not to

Question 2

Can it be done orally?

Answer 2

no

Question 3

subsequent instrument and revocation

Answer 3

revocation of a will and any associated codicils can be express/implied by terms of a subsequent written instrument

Question 4

what can the Subsequent Instrument be?

Answer 4

a will or codicil

Question 5

What else will a revocation of a will revoke?

Answer 5

all codicils to the will

Question 6

can a later will or codicil impliedly revoke an earlier will?

Answer 6

yes. triggered by an inconsistency between the older will and the newer will

the later document controls and revokes prior inconsistencies

Question 7

what requirements must the new writing meet?

Answer 7

if the new doc is a will, it must meet the requirements of an attested will or holographic will

Question 8

does harmless error apply to a subsequent will that does not meet the requirements of a will?

Answer 8

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

Question 9

physical act and revocation

Answer 9

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

Question 10

what about accidental destruction

Answer 10

does not revoke a will

Question 11

can a third party do it?

Answer 11

yes at the testator’s direction, in their presence

Question 12

what is cancelling a will?

Answer 12

physically marking the will with a pen, marker, etc

Question 13

what must the physical act do according to the courts?

Answer 13

requires a physical act “to touch the words of the will”

Question 14

does harmless error apply to physical acts

Answer 14

NO

Question 15

how does divorce/annulment affect this?

Answer 15

revokes any provision in the testator’s will in favor of a former spouse; also revokes nonprobate transfers and death benefits

Question 16

what is dependent relative revocation (DRR)?

Answer 16

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

Question 17

what is a revival?

Answer 17

makes a revoked valid will effective again

Question 18

what happens if first will expressly revoked by second will?

Answer 18

revocation of 2nd will does not revive the first will; the estate passes by intestacy

Question 19

what happens if first will implicitly revoked by second will?

Answer 19

revocation of 2nd will does revive the first will

Question 20

what happens if the revocation of the second will does not automatically revive the first will?

Answer 20

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

Question 21

revival by remarriage

Answer 21

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

Question 22

timing

Answer 22

revived will is executed at the time of re-execution, republication, or revival

Question 23

what happens if a will is lost?

Answer 23

there is a rebuttable presumption that the decedent destroyed the will with intent to revoke it

Question 24

duplicate original

Answer 24

two executed copies of the same will; a duplicate may be admitted to probate

Question 25

a photocopy

Answer 25

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

Question 26

the attorney’s copy

Answer 26

valid evidence of the existence and terms of the will

Question 27

who is the burden of proof on if the will is lost?

Answer 27

the burden is on the proponent to prove the will’s existence by clear and convincing evidence