Revocation of Wills Flashcards
What does it take to revoke a will?
- Later testamentary instrument
2. Physical act (burning, tearing, canceling, obliterating, other act of destruction.
Hobie’s will is found among his papers after his death. At the bottom of each page of the three page will is written, in Hobie’s handwriting, “This will is VOID. Hobie Gates” Is this a valid revovation under IL law?
No, this didn’t cancel anything, since it didn’t disface the will.
What if Hobie crosses off his previous signature with a big X. Is this valid revocation?
Yes, this constitutes as a valid act of revocation, defacing the signature.
Adam has a xerox copy of his will (the original is in his safety deposit box) and he tears up the copy and burns it. Is this a valid revocation?
No. Must be the original.
Adam calls his attorney, and tells him “revoke my will. I’ll come down to your office next week and write a new one, but for now I don’t want a will”. His attorney pulls out Adam’s will and marks a big X on the signature. Is this a valid will revocation?
No. For a revocation by another person by physical act, must be:
- At testator’s direction, AND
- In testator’s presence
How will Adam’s will in the previous problem (invalidly destroyed attorney) be probated?
By satisfying “proof of last will statute”?
How do you satisfy the proof of last will statute?
- Proof of due execution (testimony of attesting witnesses) as in any case
- Cause of will’s non-production must be proved. (must overcome presumptions as to revocation set out below)
- Contents must be substantially proved by copy of will or by testimony of witnesses who have read it or heard it read
What is the presumption about revocation if a will last seen in testator’s possession/control is not found after death?
Then there is a presumption that the testator destroyed the will.
What is the presumption about revocation if a will last seen in testator’s possession/control is found mutilated after death?
Then there is a presumption that the testator destroyed the will.
Tim executes his “last will” in 2004. In 2006, Tim executes another “last will.” The 2006 will does not contain language of revocation of earlier wills. What do you do with the two wills?
To the extent possible, you read the two instruments, treat the second “last will” as a codicil, and revokes the first will only to the extent of inconsistent provisions. If second will is wholly inconsistent, the first will is revoked by implication
Time executes a will leaving his estate for his grandchild Gary. Two years later, Tim executed another will leaving his estate to Gary’s father, then to Gary for life, including a valid revocation clause. Six months later he decides against te second will, and physically destroyed it with the intention of reviving the earlier will. Tim died last week, survived by his daughter (Gary’s mother) as well as Gary.
Is the first will revoked?
Is the second will revoked by physical act?
- First will was revoked when second will (with its revocation clause) executed: general rule is that a will is an “ambulatory” doc., so no legal effects during testator’s lifetime, and id effective only at testator’s death.
One exception: The one legal consequence a will can have during the testator’s lifetime is to revoke an earlier will.
Time executes a will leaving his estate for his grandchild Gary. Two years later, Tim executed another will leaving his estate to Gary’s father, then to Gary for life, including a valid revocation clause. Six months later he decides against te second will, and physically destroyed it with the intention of reviving the earlier will. Tim died last week, survived by his daughter (Gary’s mother) as well as Gary.
Is the second will revoked by physical act?
Second will was revoked by physical act
Is there a way to revive revoked wills?
Are there any exceptions?
No, not in IL. Once a first will was revoked, it is legally dead unless:
- the will was re-executed validly, AND
- The doctrine of “republication by codicil”
What is Dependent relative revocation?
DDR permits a revocation to be disregarded when the act of revocation was premised upon, conditioned upon, dependent upon, a mistake of law or fact as to the validity of another disposition.
When is it permissible to apply the dependent relative revocation doctrine?
You use when there was a mistake of fact or law, and it must be used to come closer to giving effect to testator’s INTENT. Can’t be used to defeat intent.
