Revocation of Will

Question 1

Define Subsequent Instrument

Answer 1

A express revocation of a prior will by a subsequent writing, a later will, or a codicil

Question 2

When can revocation of a Will occur?

Answer 2

1) Any time prior to T’s death
2) Lost Wills
3) Revocation of Codicils
4) Revival

Question 3

Can an oral revocation be a subsequent instrument?

Answer 3

No, oral revocation is not a proper revocation and has no effect on the will

Question 4

T/F revocation can be express or implied

Answer 4

True,

Implied - terms of a subsequent instrument

Question 5

Inconsistency between past will and subsequent writing, which controls?

Answer 5

the later document controls and revokes prior inconsistencies

Question 6

Define destruction with intent to revoke and describe its effect

Answer 6

Destruction can be burning, canceling, tearing, obliterating, or destroying a material portion of the will

Must to it with intent to revoke the will not for another purpose or by accident

EFFECT:
Most states - requires defacement of some language of the will
Some States (UPC) - the destructive act need only affect some part of the will

Question 7

Is there a rebuttable presumption of revocation when a will once known to exist cannot be found

Answer 7

YES

**Does not apply if a duplicate of the original is found

Question 8

Does a destruction of an executed will presumptively revoke all other duplicate originals

Answer 8

YES

Question 9

What two ways can revocation by operation of law occur?

Answer 9

Divorce and separation

Divorce: revokes all will provisions in favor of the former spouse

Separation: does not affect the rights of the spouse unless a complete property settlement is in place

Question 10

What is partial revocation?

Answer 10

Allows testator to revoke specific gifts of a will. (T had car going to son, later revokes that gift)

Majority: provides that if the revoked falls outside the residuary, it is not given effect until re-execution (signed again) or re-publication (new document)

UPC: provides that partial revocation is permissible regardless of the effect, even if it increases a gift outside of the residuary clause.

Question 11

Define Cancellation of Words

Answer 11

a testator cannot increase a gift to a beneficiary by canceling words in his attested will but may decrease a gift by doing so

Question 12

What is the rule for duplicates and copies of a will if a will is lost?

Answer 12

a duplicate original is permitted, but a photocopy is not

Notes: the burden is on the proponent and proof is clear and convincing evidence

Question 13

If a original will is revoked, what happens to the codicils?

Answer 13

The original will and codicils are revoked

Question 14

If a codicil is revoked, what happens to the original will?

Answer 14

The original will is revived

Question 15

What are the two way revival of a will can occur?

Answer 15

1) Republication (Implied or express)

2) Dependent Relative Revocation (DRR)

Question 16

What is implied republication (Revival) under the UPC?

Answer 16

First, look to testator’s intent - was the second will revoked by act or by a later will, and if the second will as revoked by an act, whether the first will was wholly or partially revoked by that second will.

If second will was revoked by NEW WILL: the previously revoked will is only revived if the terms of the new will show that testator intended the previous will to take effect (In other words, court will not consider extrinsic evidence - oral statements of testator to determine intent)

Second will revoked by PHYSICAL ACT: extrinsic evidence permitted (whole or partial revocation)

Question 16

What is implied republication (revival) under the common law?

Answer 16

automatic revival of the original will upon revocation of a subsequent will, followed only in a few states

Question 17

If a second will is wholly revoked by a physical act what is the presumption?

Answer 17

Presumption that T did not intend to revive the first will, burden is on the proponent of the first will

Question 18

If a second will is partially revoked by a physical act, what is the presumption?

Answer 18

presumption that the T intended to revive the revoked parts of the previous will, burden is on the challenger of the first will

Question 19

What is the Dependent Relative Revocation (DRR)?

Answer 19

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