Revocation of Wills

Question 1

Revocation by Operation of Law

Answer 1

1. Marriage—omitted spouse takes the intestate share unless the will makes a provision for a new spouse/the omission is intentional/OR the will was made in contemplation of marriage.
2. Divorce revoked provisions in favor of divorced spouse.
3. Omitted children take the share they would have received unless omission is intentional.

Question 2

Revocation by Physical Act

Answer 2

Burning/tearing/canceling with the intent to revoke.

May partially revoke & use extrinsic evidence to determine intent.

A will not found at death is presumed to be revoked.

Question 3

Revocation by Written Instrument

Answer 3

Revoking instrument must be executed with the same formalities as a will.

Inconsistent provisions in later instrument revoke prior provisions by implication.

Question 4

Revival of Revoked Wills

Answer 4

Majority of states approach is the destruction of revoking instrument presumptively revives revoked will unless the testator does not so intend.

Will is always revived if it is re-executed with formalities, or re-published by codicil

Question 5

Dependant Relative Revocation

Answer 5

Court may disregard revocation if :

1. Premised on a mistake of law or fact;
2. Would not have occurred but for the mistaken belief that another disposition was valid; and
3. The results from disregarding revocation come closer to the testator’s intent.

The more consistent the provisions are between both wills makes it more likely for a court to apply dependent relative revocation