revocation of wills Flashcards
what constitutes a valid revocation?
a) Rule: A Will can be revoked only in one of two ways:
1) By subsequent testamentary instrument (a new Will) executed with 7-Point Will formalities, OR
2) By intentional physical act (burning, tearing, cutting, canceling, obliteration, or act of mutilation) BUT must have intent to revoke at time of physical act.
(a) Words: Must deface the actual words on the will by crossing them.
(i) Example: writing void at the top is not enough; must actually be over the words.
(ii) Example: writing at the bottom of each page “I cancel this will” is insufficient unless witnessed (to become valid subsequent testamentary instrument)
(b) Signature: Anything done to the testator’s signature qualifies as a decisive act of revocation.
(i) Example: crossed out signature with big X is enough.
(c) Accidental Tearing: does not destroy, because no intent!
3) No Holographic Changes
express revocation
Typical language is “I hereby revoke all Wills heretofore made by me.”
revocation by implication
When there are two wills, but no valid revocation of the previous will, to the extent possible, you read two instruments together.
a) Second will treated as codicil (amendment) to first will → only revokes first will to extent inconsistent.
b) Exception: if second will wholly inconsistent with first, the first is revoked by implication.
1) Example: first Will leaves “all my property to A” and second Will leaves “all my property to B”
2) Example: In 1994, Rudy G. executes “my last Will.” In 1998, Rudy G. executes “my last Will.” The 1998 Will does not contain language of revocation of earlier Wills.
revocation by physical act of another (revocation by proxy)
The physical act must be: (1) at testator’s request; (2) done in testator’s presence; AND; (3) at least two witnesses.
SO, need at least 4 people in room (testator, person destroying, 2 witnesses)
presumptions regarding revocation of wills
a) Where will last seen in T’s possession or control is not found after death → presume revoked by physical act (T destroyed it with intent!)
b) Where will last seen in T’s possession or control and found damaged after death (e.g. torn) → presume testator himself did the mutilation → revoked by physical act.
c) Where will last seen in possession of someone adversely affected by its contents → assume foul play so neither presumption arises.
(a) Example: Person to inherit under prior but not later Will.
d) Evidence is admissible to rebut presumption of revocation where Will cannot be found or found in damaged condition.
(a) Example: T told witnesses that destruction of the Will was accidental.
changes on face of will after it has been executed
a) Rule: In NY, there are two ways a testator can make changes to will, if duly executed (7 Points):
1) Write New Will—which expressly revokes the first Will; OR
2) Add Codicil to First Will—to only change parts
b) ***Words Added After Signed And Witnessed Disregarded—as “nugatory” (need 7 points) (can add words or cross stuff out immediately before execution though)
c) ***Partial Revocation by Physical Act NOT RECOGNIZED in NY (Minority)
(a) Unlike complete revocation by physical act which does revoke the will.
no revival of revoked wills (DRR)
If a testator executes a will that is revoked by a later will containing a revocation clause, first will CANNOT be revived by testator merely revoking later will.
NOTE: NY’s no revival rule also applies to codicils
a) Rule: The first Will can only revive in one of two ways: (need validly executed doc to make a change)
1) Re-Execution: if first will is re-executed, re-signed, re-witnessed by testator, two witnesses (7 Point Test) or
2) Doctrine of “Republication by Codicil”: where testator adds duly executed codicil to first Will that either revives or makes changes to the Will.
b) Except: Dependent Relative Revocation (DRR): CL permits revocation of later Will to be disregarded IF (effect is to permit probate of later will):
1) Mistake of Law: Revocation premised or dependent upon mistake of law, AND
(a) Example: mistaken belief that revoking Will #2 would revive Will #1.
2) Effect: result of disregarding revocation of Will 2 (mistakenly revoked) closer to what testator tried (but failed) to do than intestate distribution
(a) Example: testator still intended some gift to distributees in Will 1.
3) But, if distributions in Will 2 and Will 1 are wholly inconsistent such that revocation of Will 2 was not intended to revive Will 1 → no DRR → estate pass via intestacy.
4) Rationale: sometimes called second best solution doctrine; best solution is giving effect to T’s intent by reviving Will 1, but that’s not usually possible under NY law
5) TIP: If you are given a DRR question, argue both ways (permit/reject)
(a) Doctrine has been applied by one Appellate Division case, but never by the Court of Appeals.
6) TIP: If DRR revocation of second will, probate destroyed will using Proof of Lost Wills Statutes.
“lost wills” statute
used in 2 situations: (1) DRR and (2) truly “lost” Wills
a) The “Lost Will” Proponent Must Prove (three things):
1) The “lost” or later Will was duly executed (7 pt test) AND
2) The “lost” or later Will was not revoked
(a) Thus, the “lost Will” proponent must—
(i) Overcome Presumption of Revocation that arises from the Will’s non-production; OR
(ii) Prove Revocation Should be Disregarded under DRR (Will 2)
AND
3) Prove Will’s Provisions (Actual Contents): “clearly and distinctly proven by each of at least two credible witnesses OR by copy or draft of Will proved to be true and complete.”
(a) TIP: Unless you have a photocopy, or fail test!
b) TIP: Tearing up codicil that revoked a gift does not revive the gift.
c) TIP: revoking codicil does not revoke the entire Will → provisions in Will that were unchanged by codicil remain in effect.
d) TIP: A DRR question may actually be a Lost Wills essay question
