Revocation of Wills

Question 1

What are the main ways that a Will may be Revoked?

Answer 1

A will may be revoked by:

1. Operation of law (subsequent marriage and divorce)
2. Subsequent instrument
3. Physical act: Under a typical statute, a will or codicil can be revoked by burning, tearing, canceling, or obliterating a material portion of the will with the intent to revoke (intent must be concurrent with the act)

Question 2

What happens when Marriage Following Execution of Will?

Answer 2

Most States — Marriage following execution of a will has NO EFFECT on the earlier will.

UPC — The new spouse takes an intestate share as an “omitted spouse” unless:

• The will makes provision for the new spouse
• The omission was intentional
• Will was made in contemplation of the marriage

Question 3

What happens when a couple divorces?

Answer 3

Most States — Divorce or annulment following execution of a will revokes all gifts and fiduciary appointments in favor of the former spouse. The will remains valid and is read as if the ex-spouse predeceased the testator.

UPC — UPC extends the application of the rule to provisions in favor of the former spouse’s relatives who are not relatives of the testator.

Question 4

What is the Effect of a Revocation by Physical Act on Other Instruments?

Answer 4

The revocation of a will revokes all codicils to it, BUT revocation of a codicil to a will does not revoke the entire will.

• When a will has been executed in duplicate, an act of revocation done to either copy revokes the will unless there is evidence that the testator destroyed one copy to prevent confusion realizing that there can be only one “last” will.
• However, destruction of an unexecuted copy with intent to revoke does not revoke the will.

Question 5

What is Revocation by Written Instrument?

Answer 5

All or part of a will may be revoked or altered by a subsequent instrument that is executed with the same formalities as a will.

• Express Revocation: The subsequent instrument may expressly revoke the earlier will
• Revocation by Inconsistency: If the new will completely or partially disposes of the testator’s property, the old will is either completely or partially revoked

Question 6

When is there a presumption of NO Revocation?

Answer 6

If a will is found in a “normal location” and there are no suspicious circumstances, there is a presumption that the testator DID NOT revoke it.

Examples of normal locations include the possession of a person to whom the testator delivered the will or among the testator’s valuable papers in the place the testator usually kept valuable papers like a safe deposit box or filing cabinet.

Question 7

When is there a presumption of Revocation?

Answer 7

If a will last seen in the testator’s possession or under their control cannot be found after their death or is found in a mutilated condition, a rebuttable presumption arises that the testator REVOKED it.

• However, if the will was last seen in the possession of a third person or if a person adversely affected by its contents had access to the will, NO PRESUMPTION of REVOCATION arises.

Question 8

What are the requirements to admit a lost or destroyed will?

Answer 8

If a will is lost or destroyed (and the presumption that the testator revoked it is overcome), it may be admitted to probate if the following can be proven:

1. Valid execution
2. The cause of nonproduction (proof that the will was not revoked)
3. The contents of the will

Question 9

What is the Rule When Old Will (Will 1) Wholly Revoked the Now-Revoked Will (Will 2)?

Answer 9

The previous will REMAINS revoked unless it is evident from the circumstances or the testator’s statements that the testator intended to revive the previous will.

Question 10

What is the Rule When the Old Will (Will 1) Partially Revoked the Now-Revoked Will (Will 2)?

Answer 10

The revoked provisions are REVIVED unless it is evident from the circumstances or the testator’s statements that the testator did not intend to revive the provisions.

Question 11

What is Dependent Relative Revocation?

Answer 11

The doctrine of dependent relative revocation applies when a testator revokes their will under the mistaken belief that another disposition of their property would be effective, and but for this mistaken belief, the testator would not have revoked the will. If the other disposition fails, the revocation also fails and the will remains in force.

Question 12

What is the typical fact pattern for a Dependent Relative Revocation problem?

Answer 12

The fact pattern involving dependent relative revocation (“DRR”) looks like this:

1. Testator executes valid Will 1.
2. Testator validly revokes Will 1 (for example, by ripping it up).
3. Testator executes Will 2, but Will 2 is invalid (for example, because it was not properly witnessed).

Question 13

What are the main questions to ask to determine if Dependent Relative Revocation applies?

Answer 13

To determine whether DRR applies, we ask the following questions:

1. Was the revocation of Will 1 impliedly conditioned on the validity of Will 2?
2. Would Testator have preferred Will 1 over intestacy?