Revocation of Will; By Operation of Law

Question 1

When is a will revoked by operation of law?

Answer 1

Unless the will expresses otherwise, DIVORCE or ANNULMENT will void:

1. disposition of property made to former spouse
2. power of appointment to former spouse
3. nomination of spouse as executor, trustee etc

NOTE –> will be treated as if spouse pre-deceased

NOTE –> dissolution/annulment usually revokes any non-probate transfers - joint tenancies, CP interests with right of survivorship

NOTE –> the rule applies to marriages and DP’s

Question 2

Does legal separation have the effect of revocation by operation of law?

Answer 2

No

Question 3

Is will revoked by birth of children?

Answer 3

No. but children may claim as pretermitted heirs.

Question 4

What happens if marriage/DP is reinstated?

Answer 4

If it was voided by operation of law, it will automatically be revived

Question 5

What is the rule provided by California’s “Omitted Heirs Statute”?

What are the exceptions

Answer 5

In general –> protects a surviving SPOUSE or DP from being UNINTENTIONALLY committed from a deceased spouse’s (or DP’s) WILL or REVOCABLE TRUST

WHEN APPLICABLE:

1. T marries or enters into DP after executing all testamentary instruments;
2. spouse or DP survives T
3. spouse or DP is NOT provided for in T’s will or revocable trust

RESULT –> surviving spouse (or DP) takes:

1. her CP and quasi-CP share; AND
2. her INTESTATE share of T’s estate (not to exceed 1/2 of T’s SP estate)

Exceptions:

1. T’s failure to provide for spouse:
   (i) was INTENTIONAL; AND
   (ii) that intent appears on FACE of will or revocable trust;
2. T provided for spouse or DP:
   (i) OUTSIDE of will; AND
   (ii) INTENT that transfer be in lieu of testamentary provision is shown by statements of the testator, amount of transfer, or other evidence
3. spouse or DP made a valid AGREEMENT WAIVING RIGHTS to share in T’s estate

Question 6

If spouse or DP takes under California’s omitted heir statute - how does it work?

Answer 6

1. surviving spouse’s share is FIRST taken from portion of estate not disposed of by will or trust
2. IF that is not sufficient, the amount necessary to satisfy the share will be taken from each beneficiary in proportion to their interest

Question 7

What is the doctrine of “Dependent Relative Revocation”?

When does it apply?

What are the limitations?

Answer 7

“Dependent Relative Revocation” applies when T revokes his will under the MISTAKEN belief that another disposition of his property would be effective, and but for that mistaken belief, he would not revoke the will

EFFECT –> if other disposition fails, revocation fails and will remains in force

NOTE –> if revocation is by subsequent instrument, extrinsic evidence is not permitted to prove mistake

LIMITATION –> DRR is only applied if outcome comes closer to what T tried (and failed) to do than would an intestate distribution

Question 8

Will 1 is executed.

Then Will 2 is executed, revoking Will 1.

Will 2 is then revoked. Is Will 1 revived?

Answer 8

If Will 2 is revoked by PHYSICAL ACT –> extrinsic evidence can be used to prove T’s intent to revive Will 2

If Will 2 is revoked by later will (Will 3) –>

1. Will 1 is NOT revived EXCEPT to the extent it appears from the terms of Will 3 that T INTENDED for Will 1 to take effect.
2. Extrinsic evidence is NOT permitted to prove T’s intent to revive Will 1

NOTE –> Will 1 may also be revived by:

1. re-execution
2. re-publication by codicil (provided that Will 1 was valid and not destroyed)