Revocation of Wills Flashcards
How may a will be revoked?
1) A subsequent testamentary instrument.
2) Physical act + intent to revoke
[crossing out signature is enough. but can’t cross out certain lines piecemeal].
Examples
- Writing this will is void on every page. Does NOT revoke because not witnessed by 2 witnesses, and not a sufficient physical act.
- Tearing up with intent to revoke. Valid revocation.
How can a will be revoked by implication?
Important. [Revocation by implication is at bottom]
Facts: Taylor executor will in 2008 that said “my last will.” Then, in 2011, Taylor executed another will that said “my last will.” The second will did not contain language of revocation of the first (like “I hereby revoke all will heretofore made by me.”) What result?
Rule: To the extent possible, read the 2 instruments together. The second will is treated as a codicil and it only revokes the first will to the extent there are inconsistent provisions.
Exception: If the second willl is wholly inconsistent with the first, the first will is revoked by implication.
How can a will be revoked by the physical act of another (by proxy)?
Rule: The physical act must be:
- At the testator’s request
- In the testator’s presence, AND
- Witnessed by at least two witnesses.
Trick: Four people must be there. The testator, destroyer, and 2 witnesses.
What are the presumptions regarding the revocation of wills?
1) When a will that was last seen in the testator’s possession or control is not found after death, the PRESUMPTION is that the testator revoked the will by physical act.
2) When a will that was last seen in the testator’s possession or control is found in a damaged condition after T’s death, the PRESUMPTION is that the testator had the intent to revoke.
These presumptions are obviously rebuttable.
Note: Neither presumption arises if the will was last seen in the possession of someone adversely affected by its contents. (assume foul play)
When are changes on the face of a will effective after the will has been executed?
/
How do you modify a will that has been executed?
Rule: Only 2 ways a testator can make changes in her will are:
1) Write a new will which revokes the first will
2) Make a codicil to the first will with testimentary formalities
Both must be duly executed.
Will 1 is executed. Will 2 is executed and has a clause in it that revokes Will 1. Will 2 is later revoked.
I Will 1 revived?
No. Once a will is revoked it CANNOT be revived. Only if it is re-executed with proper formalities.
Note: Republication by Codicil is when a codicil is later executed and is intended to modify the first will. The first will is actually revived, unless the first will was revoked by physical act [must have been revoked by later execution]
Rule of thumb: You need a validly executed document to make a change.
What is Dependent Relative Revocation?
DRR.
Rule: DRR permits a revocation of a LATER will to be disregarded.
Requirements:
1) Testator’s revocation of the 2nd will must be based on a mistake of law that revocation will revive the first will.
2) The will testator revoked (2nd will) is similar to the first will (will testator is trying to revive).
If given this question, must argue both sides. It is never a given.
How does Lost Wills statute work?
The Lost Will proponent must prove that:
1) The “lost” or later will [DRR] was duly executed;
2) The lost or later will was not revoked:
thus, the proponent must (a) overcome the presumption of revocation that arises when a will is not found, or (b) prove the 2nd will revocation should not have occurred (drr)
3) The will’s provisions must be clearly and distinctly proven by each of at least _two credible witnesse_s, or by a copy or draft of the will proved to be true and complete.
