Revocation of Wills Flashcards
When may person revoke their will
Any time prior to death so long as they have testamentary capacity
How may a validly executed will be revoked?
(1) Operation of law
(2) Subsequent written instrument OR
(3) Physical Act
When does revocation by operation of law occur?
(1) Marriage following execution of the will
* Spouse takes an intestate share of testator’s estate unless it appears from the will that omission was intentional
(2) Divorce or Annulment
* Must be final divorce, not pending
* All gifts are revoked, but if they reconcile and remarry, all provisions are revived
* Remember ALL provisions in favor of former spouse are revoked (e.g., appointments as executor, guardian, or trustee)
(3) Pretermitted Child (e.g., born or adopted after will was executed)
* If no other children at time of execution, pretermitted child takes intestate share
* If other children, take LESSER OF: (a) amount equal to largest bequest made to any of testator’s other children OR (b) intestate share
* Process–first take from any portion of estate not disposed of by will, then take proportionately from all beneficiaries under the will
When Does Revocation by Written Instrument Occur?
By express or implied inconsistency; however, if no express language, instruments read together to extent possible
* Second revokes first to extent of any inconsistent provisions
* Can be done by will codicil, or other writing executed with same formalities as required for execution of will
* Dispensing power statute also applies to instruments that purport to revoke a will
How does reovcation by physical act occur?
Requires:
(1) Sufficient act (BCTOD) document or testator’s signature
* Can revoke in whole or in part (e.g., cross out clause 10)
(2) Intent to revoke that is simultaneous with act
(3) Performed by the testator or a proxy
* Proxy OK if at testator’s direction AND in testator’s presence
What presumptions exist as to revocation?
(1) Presumed revoked if it cannot be found after testator’s death and was last seen in their possession or control
* No presumption if will was not in possession/control, or last seen in possession of a person adversely affected by its contents
(2) If found after death in mutilated condition, presumption that testator did mutilating with intent to revoke the will
These are overcome by clear and convincing evidence
What is the effect of alterations on the face of the will?
Dispensing power statute applies to such alterations so that an addition or alteration is given effect
* Need clear and convincing evidence of testator’s intent to modify the will by addition or alteration
When can a revoked will be revived?
Only if it is reexecuted with the full testamentary formalities
* Simply destroying the second instrument won’t revive the first
* Dispensing power statute can be invoked if clear and convincing evidence that decedent intended subsequent document or writing to be revival of a formerly revoked will or portion of a will
What is the Dependent Relative Revocation Doctrine and When Does It Apply?
DDR applies when a testator revokes their will based on a mistake of law or fact as to the validity of another testamentary instrument and, but for this mistake, the testator would not have revoked the will
* Disposition that results from disregarding revocation must come closer to effectuating what the testator tried (but failed) to do than would occur if the revocation is given effect
* If more recent will failed, revocation would also fail, and first will is in effect
* Testator will not get what they want–Will 2 is gone, so must determine whether Will 1 or intestacy more closely effectuates presumed intent of testator
When will VA permit probate of a lost or destroyed will?
(1) When presumption of revocation is overcome AND
(2) Clear and convincing evidence of:
* The fact that the will was properly executed
* The fact that the will was lost or destroyed; AND
* The will’s contents
