REVOCATION BY PHYSICAL ACT, SUBSEQUENT WRITTEN INSTRUMENT & BY OPERATION OF LAW

Question 1

Elements for Revocation by Physical Act

Answer 1

1. Will must be burned, torn, cancelled, destroyed or
   obliterated.
2. Testator must have the simultaneous intent to revoke.
3. The act must be done either by testator, or by someone in testator’s presence and at his direction.

Question 2

Cancellation:

Answer 2

lining out or crossing out with a pen or pencil.

Question 3

Obliteration:

Answer 3

Erasing

Question 4

Interlineation:

Answer 4

writing between the lines

When the interlineation is less than the cancelled
provision, DRR will not be used.

Question 5

Cancellation to increase a gift

Answer 5

Prohibited

Question 6

An interlineation or other handwritten addition to a typed (attested) will that does not qualify as a holographic codicil may nonetheless be a valid cancellation.
Example:

Answer 6

Testator executes a valid typed formal will. Subsequently testator writes “Null and Void” across the face of the will.

Question 7

Duplicate Wills - Rule

Answer 7

If testator, or someone in testator’s presence and at his direction, revokes by physical act one of the duplicate originals, then the other duplicate original also is revoked, as a mater of law.

Question 8

Problem: What is the consequence of finding a will in a mutilated condition?

If a will is found in a mutilated condition at testator’s death, and when last seen it was in testator’s possession, there is a rebutable presumption:

Answer 8

that T mutilated the Will with the intent to revoke the Will

Question 9

Manners of Revoking Subsequent Written Instruments:

Answer 9

1. Express revocation
2. Implied revocation

Question 10

Implied revocation

Answer 10

Will #2 revokes Will #1 by implication if Will #2 totally disposes of Ts estate

If Will #2 totally disposes of all of testator’s estate, there
is nothing for Will #1 to act upon.

Question 11

Revival of Will Revoked by Physical Act:

Answer 11

Will #1 is revived only if testator manifests an intent to revive Will #1. Oral statements by testator at the time Will #2 was revoked are admissible

Question 12

Revival of Will Revoked by subsequent instrument

Answer 12

Will #1 is not revived unless it appears from the terms of the codicil that T wanted Will #1 revived

Question 13

4 Issues for Revokation by Operation of Law

Answer 13

Omitted child
Omitted spouse
Omitted domestic partner
Final dissolution of marriage or domestic partnership

Question 14

Omitted or Pretermitted Child

Answer 14

A child born or adopted after oral testamentary instruments are executed and not provided for in any testamentary instrument.

Question 15

Consequence of finding an omitted child:

Answer 15

Child receives a share of the decedent’s estate equal in value to that which the child would have received if the decedent had died without ever having executed any testamentary instrument (will, codicil, or intervivos trust). Thus, to put it more plainly, the child receives an intestate share of assets decedent owned at death plus the assets held in any intervivos trust.

• For the child to take this statutory share, other gifts will have to be abated or reduced.
• Hence, revocation by operation of law.

Question 16

3 Exceptions for Omitted/Pretermitted Child: if any of the following exceptions exist, the child will not take this statutory share:

Answer 16

1. Decedents failure to provide for the child in any testamentary instrument was intentional and that intention appears from the testamentary instrument
2. At the time of execution of the testamentary instrument, the decedent had one or more
   children and transferred by will or revocable inter vivos trust substantially all of his estate to the parent of the omitted child.
3. The decedent provided for the child by
   transfer outside the testamentary instrument with the intention that the transfer is to be in lieu of any
   testamentary provision.

Question 17

Omitted Spouse

Answer 17

A surviving spouse who married the decedent after the execution of oral testamentary instruments and is not provided for in any testamentary instrument

Question 18

Consequence of finding an omitted spouse:

Answer 18

spouse receives a statutory share of the decedent’s estate equal in value to that which the spouse would have received if the decedent had died without ever having executed any testamentary instrument
(will, codicil, or intervivos trust). Thus, to put it more plainly, the omitted spouse receives a statutory share of assets decedent owned at death plus the assets held in any revocable inter vivos trust.

Question 19

statutory share that the omitted spouse receives is as
follows:

Answer 19

1. The one-half of the community property owned by the decedent at death or in any revocable inter vivos trust (thus, because the omitted spouse already owned the other one-half, the omitted spouse now ends up with 100% of the community property).
2. The one-half of the quasi-community property owned by decedent at death or in any revocable inter vivos trust (thus, because the omitted spouse already owned the other one-half, the omitted spouse now ends up with 100% of the quasi-community property).
3. A share of the separate property of the decedent equal in value to that which the spouse would have received if the decedent had died without ever having executed any testamentary instrument (will or trust), but in no event is the share to be more than one-half the value of the separate property in the estate.

Question 20

3 Exceptions: If any apply, the omitted spouse will not take the aforementioned statutory share:

Answer 20

1. Decedents failure to provide for the spouse in any testamentary instrument was intentional and that intention appears from the testamentary instrument
2. Decedent provided for the spouse by transfer outside of the testamentary instruments with the intention that the transfer be in lieu of any testamentary provision.
3. Omitted spouse signed a waiver.

Question 21

3 elements for a waiver:

Answer 21

1. Waiver must be in writing, signed by the waiving spouse before or during marriage; and
2. Full disclosure by decedent of decedent’s finances; and independent counsel by the waiving spouse

Question 22

But even if there is no disclosure by the testator or
independent counsel by the waiving spouse, the
waiver still is enforceable if:

Answer 22

1. the waiving spouse had or should have had knowledge of the testator’s finances, or
2. if the waiver was in fact fair.

Question 23

But in no event will the waiver be enforced if the
waiver is:

Answer 23

unconscionable

Question 24

Domestic partners defined:

Answer 24

Partners must be

1. of the same sex, or
2. of the opposite sex and at least one person is at least 62 years of age, AND
3. Partners must have filed a declaration of domestic partnership with the Secretary of State.

Question 25

What does CA law provide for domestic partners:

Answer 25

California law gives domestic partners the same rights and obligations as married persons.

Thus, domestic partners may hold property as community property or quasi-community property.

Consequently, the rules for omitted domestic partners are the same as for omitted spouses.

Question 26

Four rules regarding testamentary gifts:

Answer 26

1. By operation of law, there is a revocation of the devise to the spouse or domestic partner if there is an annulment or final dissolution of marriage, or termination of domestic partnership.
2. legal separation does not count
3. The devise is reinstated if the will is unchanged and the testator remarries the former spouse, or reestablishes another domestic partnership with the former domestic partner.
4. The will states “even if my domestic partnership terminates, my partner is to take all my property”