Revocation of Wills Flashcards
What are the two ways a will can be revoked?
- Subsequent testamentary instrument
2. Physical act with the intent to revoke
If you write “This will is revoked.” on the top or bottom of your will, is that enough?
No. Merely writing something like that is insufficient unless you have two witnesses (meet the 7-point test)
If you cross out your signature but touch nothing else on the will, is that enough?
Yes - if done with the intent to revoke. Scratching out a signature counts as a physical act of revocation.
What is express revocation?
Including in a new will, the sentence “I hereby revoke all wills heretofore made by me.”
What happens if there are two will documents, and the second one does not have express revocation language?
If possible, read the instruments together. Treat the second will as a codicil - only revoking the parts of the first will that are inconsistent with the second.
What happens if there are two wills, and the second doesn’t have express revocation language but is wholly inconsistent with the first?
Treat that as a revocation of the first will by implication.
Is it possible for a physical act by a third party to revoke a will?
Yes, if:
- it is at the testator’s request, in the testator’s presence, and witnessed by at least 2 witnesses.
(need: destroyer, testator, and two witnesses)
What is the presumption when a will is not found after testator’s death?
If it was last seen in T’s possession or control, the presumption is that T revoked the will by physical act with intent to revoke.
What is the presumption if a will is found in a damaged condition after testator’s death?
If the will was last seen in T’s possession or control, the presumption is that T revoked by physical act with intent to revoke.
What is the presumption if the will was last seen in the possession or control of someone who is adversely affected by it?
There is no presumption as to revocation.
If the will is presumed revoked, can that presumption be rebutted?
Yes - any evidence is admissible to show an alternative intent or that it was someone else’s fault the will was lost/destroyed.
Can a person amend their will by writing in additional provisions or scratching out some provisions?
No - anything added after a will is duly executed will be disregarded. Amendments to a will must meet the due execution test to be valid.
NY does NOT recognize partial revocation by physical act. Crossing things out or blacking out one clause will do nothing without due execution.
If T revokes his earlier will by executing a new will with a revocation clause, can he revive the original will by revoking the second will?
No - once a will is revoked it cannot be revived except by meeting the due execution test again.
What is the only way to revive an old will?
By duly executing a new will that includes the provisions you want to “revive” or by duly executing a codicil that re-includes sections you want to revive.
What does Dependent Relative Revocation (DRR) allow?
DRR permits revocation of a later will to be disregarded (essentially revival of a later will). It is known as the “second best solution” doctrine because it attempts to get to the testator’s intent without contravening NY law about revival.
Use this when the testator wanted to revive an older will and thinks he can revoke the new will to do that.
