Revocation of Wills Flashcards
Revocation - In General
a person with testamentary capacity may revoke his will at any time prior to death.
Ways in which a will may be revoked
1) Operation of Law
2) Subsequent Instrument
3) physical Act
Revocation by Operation of Law
1) Marriage Following Execution of Will
2) Divorce or Annulment Revokes Provisions in Favor of Former Spouse
3) Pretermitted Children
Marriage Following Execution of Will
Most - no effect
Some + UPC - new spouse takes an intestate share as an “omitted spouse” unless
1) will makes provision for new spouse
2) omission was intentional
3)) will was made in contemplation of marriage
Divorce or Annulment Revokes Provisions in Favor of Former Spouse
Most - revokes all gifts and fiduciary appointment in favor of former spouse
UPC - Extends to gifts made to spouses relatives who are not relatives to T
Pretermitted Children
Most - if fails to provide for child born or adopted after execution the child takes an intestate share
Revocation by Physical Act
Will or codicil can be revoked by burning, tearing, canceling, or obliterating a material portion of the will with INTENT at that time to revoke
Accidents do not revoke
Partial Revocation
Allow partial revocation by physical act
Presumptions as to Revocation
Will last seen in T’s possession or control and cant be found or found in mutilated condition then presumption of revocation.
If last seen in possession or control of 3rd party then no presumption of revocation
Effect of Revocation on Other Testamentary Instruments
revocation of will revoked all codicils.
Revocation of codicil does not revoke entire will
when 2 or more copies of a will are made. Revoking 1 copy revokes them all
Lost or Destroyed Wills
If preseumption of revocation is overcome then will is valid if the following can be proven
1) valid execution
2) cause of non production
3) content of the will
Revival of Revoked Wills
UPC + Many - IF previous will revoked. then subsequent will revoked. Previous will still revoked unless evidence of intent to revive original will.
IF original partially revoked then revoked portions will be revived.
Dependent Relative Revocation - DDR
T revokes will under MISTAKEN belief and otherwise would not have revoked
UPC - Harmless Error Statute
Show clear and convincing evidence that decedent intended document to be partial or complete revocation of a will
