Revocation of Wills Flashcards
Revocation of Wills: In General
A person who has testamentary capacity may revoke their will at any time prior to their death.
A validly executed will may be revoked by:
1) Operation of law
2) Subsequent written instrument, or
3) physical act
Revocation by Operation of Law: Marriage Following Execution of Law
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 that the omission was intentional.
Revocation by Operation of Law: Divorce or Annulment
If a testator is divorced of their marriage is annulled after executing a will, all gifts and appointments in favor of the former spouse are revoked.
- Applies to non probate 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.
Pretermitted Child
The pretermitted child statute in VA applies only to children born or adopted after the will was executed.
Pretermitted Child: No Other Children When Will Executed
If the testator had no other children at the time of will execution, the pretermitted child takes an intestate share.
Pretermitted Child: Other Children When Will Executed
If the testator had other children at the time of will execution, the pretermitted child takes the lesser of:
- an amount equal to the largest bequest made to any of the testator’s other children, or
- an intestate share
Pretermitted Child: Assets used to Satisfy Child’s Share
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.
Revocation by Written Instrument
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 tot he formal requirements for execution of a will also applies to instruments that purport to revoke a will.
Revocation by Physical Act
Virginia permits a codicil or will to be revoked in whole or in part.
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
Physical Act
A will or codicil can be revoked in whole or in part by burning, tearing, canceling, cutting, obliterating, or destroying (“BCTOD”) the document or the testator’s signature.
- the act must be accompanied by the present intent to revoke.
Revocation by Another
VA permits a will to be revoked by a physical act by another person, provided that the revocation is at the testator’s direction, and in the testator’s presence.
Preseumptions as to Revocation
A will is presumed revoked if it cannot be found after the testator’s death and was last seen in their possession or control.
- Presumption can be rebutted with clear and convincing evidence.
Effect of Revocation on Other Testamentary Instruments
Revocation of a will revokes all codicils to that will, but the revocation of a codicil does not revoke the original will.
Proof of Lost, Destroyed, or Suppressed Will
VA 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 myst 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
Alterations on Face of Will
In Virginia, the dispensing power statute applies to interlineations so that an addition to or an alteration of the will is given effect when there is clear and convincvidence that the testator intended to modify the will by their additions or alterations.
