Revocation of Wills Flashcards
When can a person with testamentary capacity revoke a will?
At any time prior to death
California omitted heir statutes
Protect a surviving spouse or domestic partner from being unintentionally omitted from a deceased spouse’s or domsetic partner’s will or revocable trust
Spouse or domestic partner’s omitted shares
If a testator marries or enters into a domestic partnership after executing all testamentary instruments, the spouse or domestic partner survives the testator, and the spouse is not provided for –> the surviving spouse may take, in addition to their share of the community and quasi-community property, an intestate share of the decedent’s estate.
The spouse’s or domestic partner’s intestate share of separate property may not exceed one-half of the value of the decedent’s separate property in the estate.
When does a surviving spouse/DP not receive an intestate share?
- intentional omission
- when provided for by non-probate transfers
- waiver
Spouse’s waiver of the right to share in testator’s estate
The spouse or domestic partner made a valid agreement waiving the right to share in the testator’s estate.
The rights that may be waived include:
1. take property by intestacy, will, or nonprobate transfer
2. be appointed executor or administrator
3. elect against the decedent’s will
4. take an omitted spouse’s or partner’s share
Requirements for waiver
The waiver must be in writing and signed by the surviving (waiving) spouse.
Spouse or domestic partner benefiting from the waiver must disclose their financial status to the spouse executing the waiver, and the waiving spouse must have independent legal counsel. Waiver is unenforceable if unconscionable.
Effect of dissolution or annulment of mariage or domestic partnership on the will
Unless the will expressely provides otherwise, if after executing the will the testator’s marriage or domestic partnership is dissolved or annulled, any disposition of property made to the former spouse is revoked.
Does remarriage or restablishment of a domestic partnership revive will provisions?
Yes, if any disposition in a will is revoked because of the dissolution or annulment of a marriage or domestic partnership, the provision is revived by the testator’s remarriage to the former spouse/DP
How does property that was supposed to pass to a former spouse pass after divorce?
As if the former spouse predeceased the testator
Omitted child statutes
Designed to protect children from being unintentionally omitted from a will on the assumption that the testator would have made a provision for the children has the testator thought about it.
In CA, if a decedent fails to provide for a child born or adopted after the execution of all testamentary instruments, the child receives an intestate share of the property.
What does a child born after the execution of all testamentary instruments receive in CA?
Intestate share of the property
Requirements for a child to receive forced share
Child must be:
1. born or adopted after the execution of all testamentary instruments
2. alive when the will was executed but thought to be dead, or
3. unknown to the testator because the testator was unaware of the child’s birth
The will must not show an intent to exclude the child
When does an omitted child NOT receive an intestate share?
- the decedent’s failure to provde for the child in the will or revocable trust was intentional and the intent appears on the face of the document
- the decedent provided for the child by transfer outside of the will or revocable trust
- when the will was executed, the decedent had one or more children and devised substantially all of the estate to the other parent of the omitted child
How is a pretermitted child’s estate satisfied?
a pretermitted child’s intestate share is first taken from that portion of the estate not disposed of by will or trust, if any. If that is not sufficient, so much as may be necessary to satisfy the share will be taken from all beneficiaries in proportion fo the value they may respectively receive under the trust.
Slayer statutes
A person who feloniously and intentionally kills the decedent is not entitled to;
1. any property under the intestate succession statute
2. any property covered by the statutory provision relating to gifts in view of impending death
3. any of decedent’s quasi-community property
the killer is deemed to have predeceased the testator and the anti-lapse statute is deemed inapplicable so that the killer’s issue cannot take in the killer’s stead.
How to determine whether a killing was felonious or intentional
Re: slayer statute
a final judgment of conviction is conclusive; in the absence of conviction, the court may determine by a preponderance of the evidence whether the killing was felonious or intentional.
What happens if a person with right of survivorship kills a joint tenant?
The decedent’s interest is severed and the decedent’s share passes as separate property; the killer losses the benefits of the right of survivorship.
Revocation of will by physical act
A will or codicil may be revoked by burning, tearing, canceling, obliterating, or destroying with simultaneous intent to revoke.
Where revocation is performed by another person, destruction must take place in the presence of the testator and at the testator’s direction.
Can a will be revoked by mistake?
No, the testator must have the intent to revoke.
Requirement of concurrent intent
Will revocation
The intent to revoke must be concurrent with the physical act
Mental capacity
Will revocation
The testator must be of sound mind; a destruction induced by undue influence, duress, or fraud is likewise ineffective.
Burning
will revocation
the slightest singing is sufficient; the part burned need not be material
Tearing
will revocation
Most courts require the tearing to touch some material part of the paper of the physical will
Obliteration
Will revocation
To revoke, an obliteration must affect some material part of the will; actions such as erasing or drawing lines through material provisions will normally be sufficient
Cancellation
will revocation
Drawing lines through through the words of the will. Actions such as writing “VOID” across the face of the will or drawing Xs across the pages will normally be sufficient
Writing void in the margin is not sufficient
Defacing testator’s signature
Will revocation
Defacing the signature revokes the entire will (unless there was no intent to revoke)
Can the testator direct someone else to destroy or cancel the will?
Yes, but it must be done at the testator’s request and tin the testator’s presence
Partial revocation by physical act
In CA, a will can be revoked in part as well as in while by physical act; inserting new language in between the lines (interlineation) of a holographic will constitutes both revocation of an altered provision and a valid new disposition. The prior signature is adopted when the interlineation is made.
Can a testator increase a gift to a beneficiary by cancelling words in a will?
No, a testator can only decrease a gift to a beneficiary by this method.
Duplicate original wills
Will should never be executed with duplicate originals. The revocation by physical act of one original acts to revoke all the duplicate originals
Effect of revocation on other testamentary instruments
- Physical destruction of a codicil does not revoke a will, even if the testator so intends
- physical destruction of a will revokes all codiciles thereto written on separate pieces of paper, unless the testator does not so intend.
- when the will and codicil written on the same piece of paper, defacing the will portion revokes the codicil, but defacing the codicil portion does not revoke the will, unless the testator so intends.
Express revocation
A will may be expressely revoked by a later will or codicil executed with the formalities required for a valid will. An attested will may be revoked by a holographic will and vice versa.
What if a new will completely disposed of the testator’s property?
The old will is completely revoked by inconsistency.
If the new will partially disposes of the testator’s property, the old will is revoked only as to the inconsistent parts.
Presumption of non revocation
There is a presumption of non-revocation if the will is found in a normal location, and there are no suspicious circumstances surrounding it.
What if a testator’s will is not found at his death?
If neither the original will nor a duplicate is found at the testator’s death, it is presumed that the testator destroyed or damaged the will with intent to revoke it.
What if the will was lost or destroyed absent intent?
A will proponent may prove that a will cannot be found due to a fire, flood, earthquake, etc and rebut the presumption of revocation. Where a will is lost or destroyed without being revoked, the will is admissible to probate on adequate proof of its contents.
What is CA’s approach to the revival of revoked wills?
California follows the intent approach. The court will look at extrinsic evidence to determine what the testator intended.
Express conditional revocation
The testator may state in the revoking instrument that a revocation is effective upon the happening of a named event
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.
How to detemrine whether dependent relative revocation applies?
- Was the revocation of Will 1 impliedly condition on the validity of Will 2
- Would testator have preferred Will 1 over intestacy*
*the more similar the provision of the two wills, the more likely the court will apply DRR. the more different the wills, the more likely the testator would have preferred intestacy to Will 1
