Revocation of Wills

Question 1

revocation of wills - overview

Answer 1

1) 3 types of revocation
a) revocation by operation of law
b) revocation by subsequent instrument
c) revocation by physical act

2) DRR

3) Revival

Question 2

who can revoke a will and when?

Answer 2

A person who has testamentary capacity may revoke their will at any time prior to their death.

Even a testator who has validly contracted not to revoke a will may do so, but there may be an action for breach of contract against the testator’s estate that results in the imposition of a constructive trust.

Question 3

what are the 3 types of revocation?

Answer 3

a) revocation by operation of law
b) revocation by subsequent instrument
c) revocation by physical act

Question 4

a) revocation by OPERATION OF LAW

Answer 4

1) marriage following execution of will
2) divorce or annulment
3) pretermitted child

Question 5

1)marriage following execution of will

Answer 5

situation where person made a will, and then got married - now have an OMITTED SPOUSE

If a person marries after executing a will and the spouse survives the testator, the spouse takes an INTESTATE SHARE of the testator’s estate UNLESS it appears from the will (or a premarital or marital agreement) that the omission was intentional.

**in order to give this to an omitted spouse - we will be revoking someone else’s share

Question 6

do inter vivos gifts or non probate transfers affect the omitted spouse’s right to an intestate share?

Answer 6

Inter vivos gifts and nonprobate transfers that benefit the spouse have no effect on the omitted spouse’s right to an intestate share.

Question 7

what if it is clear that the omitted spouse was intentionally omitted?

Answer 7

then they will not be entitled to an intestate share

Question 8

how do we prove intentional omission?

Answer 8

a prentuption agreement OR language express on the face of the will

Question 9

b) divorce or annulment

Answer 9

*ALL provision in favor of ex-spouse are VOID

If a testator is divorced or their marriage is annulled after executing a will, all gifts and appointments in favor of the former spouse are REVOKED.

Question 10

what if the parties remarry or reconcile?

Answer 10

If the parties reconcile and remarry, all provisions in favor of the former spouse are REVIVED.

This rule also applies to nonprobate transfers, such as life insurance policies, annuities, retirement benefits, multi-party bank accounts, or other contracts designating a beneficiary of any right, property, or money in the form of a death benefit.

Moreover, a divorce or annulment extinguishes the right of survivorship in real property held in that manner; thereafter, the parties hold the property as tenants in common.

Question 11

when does this statue of divorce revocation not apply?

Answer 11

this statute does not apply when the parties have merely separated; there must be a decree of divorce or annulment.

Question 12

remember that ALL provision in favor of a former spouse are revoked…

Answer 12

including appointments as executor, guardian, or trustee

Question 13

what happens to the distribution of the property if the provisions in favor of ex-spouse are now void?

Answer 13

the ex-spouse is treated as if they had predeceased

Question 14

3) pretermitted child

Answer 14

The pretermitted child statute in Virginia applies only to children born or adopted after the will was executed.

Question 15

what if testator had no other children when will was executed?

Answer 15

If the testator had no other children at the time of will execution, the pretermitted child (if not provided for or mentioned in the will) takes an INTESTATE SHARE.

Question 16

what if the testator DID have other children at the time of the will execution?

Answer 16

If the testator had other children at the time of will execution, the pretermitted child (if not provided for or mentioned in the will) takes the LESSER of:
a) An amount equal to the largest bequest made to any of the testator’s other children, or
b) An intestate share.

thus - if the testator had other children when the will was executed but made no gifts to them, the pretermitted child will also take nothing.

Question 17

do inter vivos gifts have no effect on pretermitted child’s share?

Answer 17

Inter vivos gifts or insurance proceeds payable to the child, no matter how substantial, have no effect on the pretermitted child’s entitle- ment to a share.

Question 18

assets used to satisfy child’s share?

Answer 18

The intestate share of a pretermitted child is first taken from any portion of the estate not disposed of by will. The amount necessary to satisfy the pretermitted child’s share is next taken proportionately from all beneficiaries under the will.

Question 19

Disposition of Undistributed Balance If Child Dies Before Attaining Majority

Answer 19

If a pretermitted child dies under age 18, unmarried, and without issue, their share or so much as remains unexpended in their support and education reverts to the person to whom it was given by the will

Question 20

2) revocation by SUBSEQUENT WRITTEN INSTRUMENT

Answer 20

A will may be revoked in whole or in part by a subsequently written will, codicil, or other writing executed with the same formalities as
are required for the execution of a will.

The dispensing power statute that applies to the formal requirements for execution of a will also applies to instruments that purport to revoke a will.

Question 21

what if there are inconsistencies in all of the instruments???

Answer 21

then the latest in time or last in time governs!

Question 22

when is there an implicit revocation by subsequent instrument?

Answer 22

through the inconsistency!

Question 23

when is a revocation by subsequent instrument EXPRESS?

Answer 23

when a subsequent instuemtn says “I hereby revoke all prior wills or codicils”

Question 24

what if no express language of revocation in second testamentary instrument?

Answer 24

Revocation by a subsequent instrument may be express or implied by inconsistency.

If the testator executes a second testamentary instrument that does not contain any express language of revocation of an earlier will, to the extent possible, the two instruments are read together.

However, the second instrument revokes the first to the extent of any inconsistent provisions (revocation by implication).

Question 25

3) revocation by PHYSICAL ACT

Answer 25

Virginia permits a codicil or will to be revoked in whole or in part.

Question 26

partial revocation - elements?

Answer 26

Partial revocation by physical act is permitted, such as when the testator crosses out only one clause in the will.

For revocation to be effective, the requirements are:
1) A “sufficient” act (“BTCOD”)
2) With intent to revoke that is simultaneous with the act
3) Performed by the testator, or a proxy.

Question 27

physical act? 1) A “sufficient” act (“BTCOD”)

Answer 27

A will or codicil can be revoked in whole or in part by BTCOD
- burning (slight singeing may be sufficient),
- tearing (need a COMPLETE tear - not a partial tear that touches material portion or words of the will),
- canceling (act must touch a material portion of the will or the words of the will),
- cutting, (act must touch a material portion of the will or the words of the will)
- obliterating, or (act must touch a material portion of the will or the words of the will)
- destroying (act must touch a material portion of the will or the words of the will)
the document or the testator’s signature on it.

The act must be accompanied by the present intent to revoke.

Question 28

3) Performed by the testator, or a proxy.

Answer 28

PROXY REVOCATION –> Virginia permits a will to be revoked by physical act by another person, provided that the revocation is at the testator’s direction, and in the testator’s presence.

(i.e. doing it by phone is not considered actual presence in state of VA)

Question 29

2) With intent to revoke that is simultaneous with the act

Answer 29

if will destroyed by mistake - no revocation occurs

**destruction that is induced by
a) lack of capacity
b) undue influence
c) fraud
d) duress
woudl nOT be valid

Question 30

what about if you accidentally revoke it - but then later decide you did want to revoke it - is this valid?

Answer 30

Remember that the accidental destruction of a will does not revoke it—even if the testator later decides they wanted to revoke it—because the intent to revoke must be present at the time of the physical act of destruction.

Question 31

what about partial revocation?

Answer 31

in VA - revocation by subsequent instrument or physical act - may be whole or partial

Question 32

partial revocation by physical act

Answer 32

• if someone draws a line or defaces their signature - likely revocation of entire instrument
• if first page of will is defaced - may be a revocation of entire instrument

other acts - have to consider and analyze scope of revocation to determine if partial or whole revocation

Question 33

Presumptions as to Revocation

Answer 33

A will is presumed revoked if it cannot be found after the testator’s death and was last seen in their possession or control.

However, no presumption arises if the will was not in the testator’s possession or control, or if the will was last seen in the possession of a person adversely affected by its contents.

If a will is found after death in mutilated condition, a presumption arises that the testator did the mutilating with the intent to revoke the will. **The presumption can be rebutted by clear and convincing evidence.

Question 34

Effect of Revocation on Other Testamentary Instruments

Answer 34

Revocation of a will revokes all codicils to that will, but the revocation of a codicil does not revoke the original will.

Question 35

copies of wills?

Answer 35

Execution of wills in duplicate can cause problems because both copies are entitled to equal deference.

Generally, an act of revocation performed by the testator upon either copy revokes the will.

However, the destruction of an unexecuted copy of the will is not effective, even if the testator had a present intent to revoke

Question 36

Proof of Lost, Destroyed, or Suppressed Will

Answer 36

Virginia permits probate of a lost or destroyed will.

However, in addition to overcoming the presumption of revocation that may be raised by the will’s nonproduction, the proponent must prove by clear and convincing evidence:
1) That the will was properly executed;
2) That the will was lost or destroyed; and
3) The will’s contents.

Declarations of the testator are admissible to corroborate other evidence, but are not sufficient proof of the contents on their own

Question 37

ALTERATIONS ON FACE OF WILL

Answer 37

In most states, an addition, alteration, or interlineation made after the will has been signed and attested is ineffective to change the will, unless the will is reexecuted with proper formalities.

In Virginia, however, the dispensing power statute applies to such interlineations so that an addition to or alteration of the will is given effect when there is clear and convincing evidence that the testator intended to modify the will by their additions or alterations.

Question 38

revival of revoked wills?

Answer 38

GENERAL RUEL - no revival in VA - revoked will must be REEXECUTED with FULL TESTAMENTARY FORMALITIES to regain effectiveness

A will revoked by the express language of a later testamentary instrument cannot be revived by destroying the second instrument.

To be restored to effectiveness, a revoked will must be reexecuted with full testamentary formalities.

However, the dispensing power statute may be invoked if there is clear and convincing evidence that the decedent intended a subsequent document or writing to be a revival of a formerly revoked will or portion of a will.

Note that the valid execution of a codicil that makes express reference to the revoked will would revive the will under the doctrine of republication by codicil.

Question 39

DEPENDENT RELATIVE REVOCATION (DRR)

Answer 39

The doctrine of dependent relative revocation (“DRR”) 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.

If the more recent disposition is deemed ineffective, the revocation accompanying
the attempted disposition also fails, and the previous will remains in force.

(i.e. do will 1, then do will 2, and destroy will 1 thinking that will 2 is valid - but it is not actually valid - without DRR - then. you woudl be treated as intestate)

Question 40

when does DRR apply?

Answer 40

For DRR to be applied, the disposition that results from disregarding the revocation must come closer to effectuating what the testator tried (but failed) to do than would occur if the revocation is given effect.

Question 41

so what does DRR do?

Answer 41

it undoes the revocation that was done because of a mistake of fact / law

try to reach ‘presumed intent’ of testator - so you compare Will #1 to Will #2 AND intestacy to Will #2
(use Will #2 as loadstar to prove intent)
- if Will #1 is closer to the intent of the testator than intestacy is, then we will undo the revocation of Will #1 applying DRR, and then we admit the instrument to probate