Revocation of Wills

Question 1

A will can be revoked in only three ways:

Answer 1

1- By operation of law (changes to marriage, pretermitted child– discussed in later cards)

2- By a SUBSEQUENT TESTAMENTARY INSTRUMENT (that either expressly revokes or revokes by implication) executed with the appropriate formalities; OR

3- By PHYSICAL ACT (of the testator or another at Ts direction & in Ts presence) with the INTENT TO REVOKE [burning, tearing, cutting, canceling, obliterating, or other act of mutilation]

NOTE: EPTL- if revoked by someone else, needs to be proven by 2 witnesses, neither of whom is doing the physical revocation

Question 2

What physical act is sufficient?

Answer 2

Cancellation/Obliteration– must touch the words of the will

Writing “Void” across the face of the will is sufficient cancellation

Anything done to the signature is valid revocation by physical act.

Question 3

Revocation by Implication:

• Rule
• Exception

Answer 3

If subsequent will does not expressly revoke, you treat the second will as a codicil and read the two instruments together. The second only revokes the first will to the extent that there are inconsistent provisions.

EXCEPTION- if second will is wholly inconsistent w/ the first, then the first will is revoked completely by implication.

Question 4

What happens if a will was last seen in Ts possession or control and is NOT FOUND after death

Answer 4

PRESUMPTION- T revoked the will

presumption does not arise if the Will was last seen in the possession of someone adversely effected by its contents

Question 5

What happens when a will that was last seen in the testator’s possession or control is found in a damaged condition after Ts death?

Answer 5

PRESUMPTION that T is the one who did the physical act of revocation

presumption does not arise if the Will was last seen in the possession of someone adversely effected by its contents

Question 6

How do you overcome presumption of revocation?

Answer 6

1- Proof that the will was not in the tesator’s possession or under her control; or
2- proof that the will was destroyed by accident.

NOTE!!!– DECLARATIONS OF THE DECEDENT DESIGNED TO SHOW THAT THE WILL HAD NOT BEEN REVOKED ARE NOT ADMISSIBLE UNLESS THEY WERE MADE “IN CONNECTION W/ SOME ACT UNDER SUCH CIRCUMSTANCES AS TO BECOME A PART OF THE RES GESTAE”, I.E., THE DECLARATIONS ARE INHERENTLY CREDIBLE.

Question 7

How can a testator modify or partially revoke her will?

Answer 7

1- write a new will revoking the first will; OR
2- make a codicil to the first will

• both must be duly executed
• words added to a will after it is signed and witnessed are disregarded
• **partial revocation by physical act is not recognized in NY **
• changes/cross-outs made before the signing of the will are valid b/c they are part of a duly executed will

Question 8

How to Revive a Revoked Will/Codicil

Answer 8

RULE- if a testator executes a will/codicil that is revoked by a later will/codicil, the first CANNOT be revived by the testator merely revoking the later will/codicil.

The first will can only be revived by:
1- re-execution; OR
2- Republication by Codicil- validly executing a codicil to the first will

Question 9

Doctrine of Dependent Relative Revocation (DR)

- what does it do?

Answer 9

DRR permits a revocation of a later will to be disregarded. The effect would be to permit probate of the later will.

Question 10

Requirements for application of DRR

Answer 10

1- Ts revocation of will 2 must be premised or dependent upon a MISTAKE OF LAW (i.e. thought it would validate the prior will)

2- the disposition that results from disregarding the revocation of Will 2 must come close to the dispositions the testator intended when he attempted to revive the earlier will

Question 11

** NEW YORK & DRR **

Answer 11

• has been applied in one appellate division case, but never by the court of appeals and a recent appellate division case said NO WAY
• ON EXAM– IF GIVEN A DRR QUESTION, ARGUE BOTH SIDES!

Question 12

Lost Wills Statute:

• what 2 situations is it used?
• what does the proponent do?

Answer 12

1- DRR; and
2- Truly “lost” wills

Proponent must prove that–
1- lost or later will was duly executed
2- lost or later will was not “revoked” by either (i) overcoming the presumption of revocation that arise from the will’s non-production; OR (ii) proving that the revocation should be disregarded under DRR;
3- the wills provisions are clearly and distinctly proven by each of at least 2 credible witnesses, or by a copy or draft of the will proved to be true and complete

Question 13

NOTE: REVOKING A CODICIL DOES NOT REVOKE THE ENTIRE WILL. PROVISIONS IN THE WILL THAT WERE NOT CHANGED BY THE CODICIL REMAIN IN EFFECT

Answer 13

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