Revocation of Wills Flashcards
Revocation by Operation of Law - divorce
If a testator is divorced after making a will, all gifts to the former spouse are revoked, and the will takes effect as though the former spouse predeceased the testator. Absent a revocation, a bequest in a validly executed will remains in full force regardless of the subsequent relationship of the parties. Under the UPC, a divorce revokes bequests not only to the former spouse but also to the relatives of the former spouse.
Revocation by Subsequent Instrument
A will may effectively revoked by operation of law, by a subsequently written instrument, or by physical act. To revoke a will by written instrument, there must be a present intent to revoke, and the instrument must be executed with the same formalities as are required for the execution of a will. In states that recognize holographic wills, a valid holographic will may revoke a typewritten, attested will.
Revocation by Physical Act
A will may be effectively revoked by operation of law, by a subsequently written instrument, or by physical act. The statutes of each state specifically prescribe the acts sufficient to revoke a will. Generally, these acts are burning, tearing, obliterating, or canceling a material portion of the will. Under the common law rule, the act must be shown to have had an actual effect on the will or its language. Under the UPC, words of cancellation may work as long as they are written on the will itself, even if they do not touch any of the words of the will.
Dependent relative revocation
Under the doctrine of dependent relative revocation, a court may disregard a revocation if the revocation was promised on a mistake of law or fact and would not have occurred but for the testators mistaken belief that another disposition of his property was valid. The disposition that results from disregarding the revocation must come closer to effectuating what the testator tried, but failed, to do than would an intestate distribution.
