Revocation of Wills Flashcards
What is Express Revocation
The testator’s words in a later will or codicil must:
(a) Indicate a present intent to revoke the earlier will, and
(b) Do the revocation by themselves. (Example: “I hereby revoke”, “I hereby cancel”.)
If revoking a will by a subsequent writing, the subsequent writing must comply with either §6110 or §6111.
What can a Testator Revoke
o Entire will
o Paragraph in a will
o Entire will and make new distributions
o An item in the will and make new distributions
What is an Implied Revocation
Revocation by Inconsistency:
- If a later testamentary instrument does not expressly revoke an earlier will, it is treated as a codicil (think: a supplement to an earlier will)
- A later instrument revokes the previous will only to the extent that its provisions are inconsistent with the previous will
- If the later testamentary instrument is entirely inconsistent with the earlier will, the earlier will is revoked in its entirety
Revocation by Physical Act: Steps of Analysis
STEPS OF ANALYSIS:
FIRST – was the physical act sufficient to revoke the will?
SECOND – did the testator intend to revoke the will by the physical act?
THIRD – was the act by the testator, or another person in the testator’s presence and by the testator’s direction?
Different Physical Acts Sufficient to Revoke the Will
Burning: Burning any part of the will with the intent to revoke the will is sufficient.
Tearing: Must tear at least part of a word on the will with intent to revoke.
Cancellation: 2 ways
i. Drawing lines through the will (i.e. draw a line through a particular gift revokes that gift; or an “X” through the entire will revokes the entire will).
ii. By writing text such as “revoked” or “void” across the will (only need to write that on the 1st page of the will to revoke the entire will – BUT could argue only intended to revoke a particular gift or page within the will.)
Obliteration: e.g. inking out the entire document by scribbling all over it.
Destruction.
Block out or cut out signature: revokes will
Revoking Duplicate Wills
A will executed in duplicate or any part thereof is revoked if one of the duplicates is burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it, by either
(1) the testator or
(2) another person in the testator’s presence and by the testator’s direction
*Does NOT apply to acts of revocation to a copy. In order for the revocation to be effective, it must be performed on an original.
If you lose a will is it revoked?
Presumption that testator destroyed their will with the intent to revoke it IF:
(1) Testator was the last one in possession of the will;
(2) Testator was competent until death; and
(3) Neither the original will nor a duplicate original can be found after the testator’s death.
*BUT, the proponent of the will can produce proof counter to the statute (and thus overcome the presumption of revocation), and then prove (by extrinsic evidence) what the will’s terms were
What Happens if you Revoke a Codicil
Any act of revocation performed on a codicil revokes the codicil, but does not revoke the underlying will.
If the underlying will is revoked, the codicil is also revoked because a codicil, by definition, is a modification of a prior will. (If the prior will is revoked, it no longer exists, thus there is nothing for the codicil to modify.)
Dependent Relative Revocation (DRR) Factual Steps
(1) A valid testamentary instrument is validly revoked (can be holographic or attested).
(2) Testator’s revocation based upon mistaken belief that another disposition is valid (either whole will, or individual gift)
(3) The alternative distribution is ineffective (if the alternative distribution IS effective, no revocation problem because the second instrument governs.)
(4) To cancel the revocation, the court must determine the result would be consistent with the testator’s probable intent.
HOWEVER the Court has discretion: Even if all of the above elements are met, the court still has discretion whether to cancel the revocation, or not. The court must ultimately decide whether to apply DRR, or let the testator die intestate.
Application of DRR when Whole Will Revoked
When a Testator revokes a will upon the belief that a new will is valid, but for some reason, the new will is invalid, the revocation can be canceled if probating the revoked will would carry out the T’s intent more closely than letting the property pass by intestacy
Application of DRR when Specific Gift Revoked
When a T revokes a specific distribution upon the belief that another distribution will be valid, and the other distribution is not valid, the revocation can be canceled if restoring the original gift would carry out the T’s intent more closely than having the original gift fail and the B takes nothing
6 Different Types of Revocation
- Express Revocation
- Implied Revocation
- Revocation by Physical Act
(a) The testator, or
(b) A person in T’s presence & at T’s direction - By Operation of Law
- Duplicates
- Lost Will
How to Revive a Will
2 Ways:
P.C. §6123(a):
1. T has a 2nd will that revoked the 1st will (in whole or in part).
2. Then testator revokes the second will
3. 1st will is presumed revoked unless extrinsic evidence shows that by revoking the 2nd will, T intended to revive the 1st will.
P.C.§6123(b):
1. T has a 2nd will that revoked the 1st will (in whole or in part).
2. Then 2nd will is revoked by a 3rd will.
3. 1st will is presumed revoked except to the extent it appears from the terms of the 3rd will that the testator intended the 1st will to take effect.
o No extrinsic evidence admissible; 3rd will must state intent to revive 1st will.
o If no inconsistent terms in wills 3 & 1 both are admitted to court
o If inconsistent terms in wills 3 & 1 will 3 controls (last in time)
Revocation by Operation of Law
Unless the will expressly provides otherwise, if after executing a will the testator’s marriage is dissolved or annulled, the dissolution or annulment revokes all of the
following:
(1) Any disposition or appointment of property made by
the will to the former spouse.
…
(3) Any provision of the will nominating the former spouse as executor, trustee, conservator, or guardian.
- Key facts: A person gets divorced/domestic partnership but does not change will.
What Happens to a Revocation if T remarries their former spouse?
Any revocation due to divorce is revived by remarriage.
