Revocation of Will Flashcards
Define Subsequent Instrument
A express revocation of a prior will by a subsequent writing, a later will, or a codicil
When can revocation of a Will occur?
1) Any time prior to T’s death
2) Lost Wills
3) Revocation of Codicils
4) Revival
Can an oral revocation be a subsequent instrument?
No, oral revocation is not a proper revocation and has no effect on the will
T/F revocation can be express or implied
True,
Implied - terms of a subsequent instrument
Inconsistency between past will and subsequent writing, which controls?
the later document controls and revokes prior inconsistencies
Define destruction with intent to revoke and describe its effect
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
Is there a rebuttable presumption of revocation when a will once known to exist cannot be found
YES
**Does not apply if a duplicate of the original is found
Does a destruction of an executed will presumptively revoke all other duplicate originals
YES
What two ways can revocation by operation of law occur?
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
What is partial revocation?
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.
Define Cancellation of Words
a testator cannot increase a gift to a beneficiary by canceling words in his attested will but may decrease a gift by doing so
What is the rule for duplicates and copies of a will if a will is lost?
a duplicate original is permitted, but a photocopy is not
Notes: the burden is on the proponent and proof is clear and convincing evidence
If a original will is revoked, what happens to the codicils?
The original will and codicils are revoked
If a codicil is revoked, what happens to the original will?
The original will is revived
What are the two way revival of a will can occur?
1) Republication (Implied or express)
2) Dependent Relative Revocation (DRR)
What is implied republication (Revival) under the UPC?
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)
What is implied republication (revival) under the common law?
automatic revival of the original will upon revocation of a subsequent will, followed only in a few states
If a second will is wholly revoked by a physical act what is the presumption?
Presumption that T did not intend to revive the first will, burden is on the proponent of the first will
If a second will is partially revoked by a physical act, what is the presumption?
presumption that the T intended to revive the revoked parts of the previous will, burden is on the challenger of the first will
What is the Dependent Relative Revocation (DRR)?
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.
