Revocation of Will

Question 1

Who and when can a will be revoked?

Answer 1

A testator can revoke their will any time prior to their death.

Question 2

What are the three ways a will can be revoked prior to their death?

Answer 2

Three ways are:
-> subsequent instrument
-> destruction with intent to revoke
-> operation of law

Question 3

What is a subsequent instrument that can revoke a will?

Is there a UPC distinction with regards to this?

Answer 3

A subsequent instrument can be any of the following:
-> subsequent writing
-> later will
-> codicil

Under UPC only a
-> holographic will
OR
-> an attested will

Question 4

Does an oral revocation of a will affect the will?

Answer 4

No it does not.

Question 5

Must the usage of a subsequent instrument explicitly state that the instrument is being used to revoke the prior will?

Answer 5

No it doesn’t need to be explicit, can also be implied.

Question 6

What happens if there is an inconsistency with regards to subsequent instruments used to revoke a will?

Answer 6

The later document controls and revokes prior inconsistencies.

Question 7

How is a will revoked through destruction ?

Answer 7

There must be the act of destruction with the intent to revoke.

Question 8

What types of actions are deemed acts of destruction in revoking a will?

Answer 8

The acts are
-> burning
-> canceling
-> tearing
-> obliterating
OR
-> destroying a material portion of the will

Question 9

How do different jurisdictions view the destructive act as being sufficient to revoke the will?

Answer 9

Most states
-> requires defacement of some language of the will (e.g. crossing out signatures) in addition to the destructive act

Some states (including UPC)
-> the destructive act need only affect some part of the will to be sufficient to revoke the will

Question 10

When is there a rebuttable presumption of revocation?

When is this presumption rebutted?

Answer 10

When a will once known to exist cannot be found.

Inapplicable id a duplicate original is found.

Question 11

What presumption is created when there is destruction of an executed will?

Answer 11

It presumes that all other duplicate originals have been revoked.

Question 12

Can a third party carry out the destruction with intent to revoke of a will?

Answer 12

Yes when the third party’s actions are done
-> at T’s direction
AND
-> in T’s conscious presence

Question 13

What is a form of operation of law that revokes a will?

Does it revoke the will for all?

Answer 13

Divorce

Only revokes the provisions of the will intended for the former spouse.

Question 14

How is divorce treated differently between most states (including UPC) and a minority of states with regards to revocation of a will?

Answer 14

Most states (including UPC)
-> revokes will provisions for the former spouse unless contrary to T’s intent

Some states
-> revokes will provisions for the former spouse IF there is a property settlement agreement.

Question 15

What is partial revocation?

Is it allowed?

Answer 15

Partial revocation is the revocation of only parts of a will.

Majority of states and UPC allow it.

Question 16

Can partial revocation be at issue, if so when?

How does the majority and the minority of states deal with this?

Answer 16

It can be an issue when part of the revoked gift falls outside of the residuary in the will.

Majority of states
-> don’t give effect until re-execution (signed again) or republication (new document) of the will

Minority of states (including UPC)
-> partial revocation is permissible regardless of the effect, EVEN IF it leaves a gift outside of the residuary clause.

Question 17

Under what circumstances can a testator cancel words in a will?

Answer 17

A T can cancel words in a will to decrease, but not increase, a gift to a beneficiary.

Question 18

What issue arises when a will is lost?

Answer 18

States are split on whether there is a rebuttable presumption that points to D destroyed the will with the intent to revoke it OR no.

Question 19

What is a duplicate original?

Can parties rely on the duplicate original?

Can a photocopy of the will be used? For what purposes?

Answer 19

Duplicate originals are two copies of the same will executed in the same manner, each complying with the same formalities.

A duplicate can be admitted to probate for usage?

A photocopy cannot be admitted to probate for usage, but can be used as proof of testamentary intent in the case of a lost or missing will.

Question 20

If a will can’t be found, who has the burden of proof to show that the will exists? What standard is used?

What types of evidence are sufficient to meet the standard of proof, what types are not?

Answer 20

If a will cannot be found, then the burden is on the proponent of the existence of a will to prove the will’s existence by CLEAR and CONVINCING evidence.

An attorney’s copy of an original is sufficient, whereas testimony by an interested witness is not.

Question 21

How are the revocations of codicils unique?

Answer 21

Revocation of codicils revives the will
-> contrast: the revocation of a will revokes all codicil’s to the will

Question 22

How does the CL implicitly revive a will?

Answer 22

Common law (implied revival)
-> automatic revival of the original will upon revocation of a subsequent will

Question 23

What overall approach do most states follow with regards to revival of wills?

Answer 23

Most states follow the “no-revival” approach.

Question 24

How does the UPC implicitly revive a will?

Answer 24

UPS - look for testator’s intent, based on
-> whether the second will Is revoked by act or by a latter will
AND
-> if the second will is revoked by an act, whether the first will was wholly or partially revoked by that second will

Question 25

Under the UPC, what happens if the second will is revoked by another new will?

Answer 25

The previously revoked will is ONLY REVIVED if the terms of the new will show that T intended the previous will to take effect; no extrinsic evidence is allowed.

Question 26

Under the UPC, what happens if the second will is revoked by a physical act?

Who has the burden of proving

Answer 26

The burden of establishing the testator’s intent depends on whether the first will was wholly or partially revoked by the second will.
-> in either case the court is permitted to consider extrinsic evidence

Whole revocation
-> if the 2nd will revoked the 1st will in whole then there is a presumption that T did not intend to revive the first will
-> burden on the proponent of the first will to show that this presumption is false

Partial revocation
-> if the 2nd will revoked only parts of the 1st will then there is a presumption that T intended to revive the revoked parts of the previous will
-> burden on the challenger of the first will to show this presumption to be false

Question 27

How does T expressly revoke a will?

Answer 27

T acknowledges the original will with testamentary formalities.

Question 28

What is the equitable doctrine of dependent relative revocation?

Answer 28

T’s revocation of the will is disregarded if it was based on a mistake of law or fact, AND would have NOT been done but for that mistake.

Question 29

What situations does the equitable doctrine of dependent relative revocation apply to?

Answer 29

Typically courts apply this doctrine when
-> an alternative disposition states in a subsequent document fails
OR
-> the mistake causing the documents revocation is reiterated in the revoking instrument