Revocation of Wills

Question 1

What does it mean to say that a will is ‘ambulatory’?

Answer 1

A will is ambulatory in that it can be altered or revoked at any time up until the testator’s death.

Question 2

What are the three ways to revoke a will?

Answer 2

1. Subsequent Instrument;
2. Physical Act; or
3. Operation of Law.

Question 3

What are the two methods to revoke by subsequent instrument?

Answer 3

Express Revocation. To revoke by express revocation is to revoke with a later writing that expressly revokes a prior will. NOTE: it must be in writing, oral revocation is not sufficient.

Implied Revocation. An implied revocation happens where a later writing is inconsistent with prior wills. So long as it is validly executed, the later document controls.

Question 4

How can you tell the difference between an implied revocation and a codicil?

Answer 4

Look for a residuary gift.

If the original will has a residuary gift and a later writing does not, the later writing is probably a codicil.

If the original will does not have a residuary gift and a later writing does, the later writing is probably a new will.

Question 5

Revocation of Wills - Physical Act

Answer 5

A testator may revoke a will in part or in its entirety by engaging in a physical act of destruction (e.g. tearing, burning, or crossing stuff out). The testator must intend for the physical act to revoke the will.

Question 6

Physical Act - Destruction of Specific Language

[Majority vs. UPC]

Answer 6

Majority. The particular language in question must be destroyed.

UPC. Only requires that destructive act affect some part of the will.

Question 7

What happens when there is a ‘lost’ will?

Answer 7

When we know a will exists, but cannot find it at the testator’s death, this creates a rebuttable presumption that the testator revoked the will by physical act.

The burden rests with the proponent to show will’s existence by clear and convincing evidence.

Question 8

Operation of Law

Answer 8

Wills can be revoked by operation of law. In most jurisdictions, divorce revokes all will provisions in favor of the former spouse.

Exception: there is evidence that testator wanted the will to survive.

Question 9

Special Issue

Third-Party Revocation

Answer 9

A third party can revoke on behalf of a testator if:

1. At the testator’s direction; and
2. In the testator’s conscious presence (e.g. NOT over the phone).

Question 10

Special Issue

Revoking Codicils

Answer 10

By revoking a will, the testator also revokes any codicil attached to the will.

NOTE: the opposite is not true – if the testator revokes a codicil, the underlying will is revived in its original form.

Question 11

Special Issue

Revival

Answer 11

1. Republication. Under the UPC (and the majority) there is no recognition of automatic revival of a revoked will – a testator must re-execute their will if they want it to be valid after revocation.
2. Dependent Relative Revocation [DRR]. DRR provides a safety valve for testators who revoke a will on the basis of a mistake - which can be grounded in law or in fact - and what it does is DRR invalidates the mistaken revocation and revives the earlier revoked will.