Revocation of Wills

Question 1

Revocation - General Concept

Answer 1

• person w/ testamentary capacity may revoke their will at any time prior to death

Will may be revoked by:
- operation of law
- subsequent instrument
- physical act

Question 2

Revocation and Breach of Contract

Answer 2

• testator CAN revoke a will even if they contractually agreed not to, but beneficiaries may then have a breach of contract action against the estate

Question 3

Potential Instances of Revocation By Operation of Law

Answer 3

• marriage following execution of will
• divorce or annulment revokes provisions in favor of former spouse
• pretermitted children

Question 4

Marriage Following Execution of Will

Answer 4

• in most states, marriage following execution of a will has no effect on the earlier will
• in some states and under the UPC, the new spouse takes an intestate share as an “omitted spouse” unless:
  -> the will makes provision for a new spouse
  -> the omission was intentional OR
  -> the will was made in contemplation of the marriage

Question 5

Revocation - Divorce or Annulment - Basics

Answer 5

• in most states, divorce or annulment following will execution REVOKES all gifts + fiduciary appointments in favor of former spouse
  -> will remains valid -> read as if ex-spouse predeceased testator

Question 6

Revocation - Divorce or Annulment - Wrinkles

Answer 6

• UPC + some non-UPC states extend the application of the rule to provisions in favor of former spouse’s relatives who are not relatives of the testator
• divorce must be final
• if parties remarry, revocation does not occur
• revocation includes ALL provisions in favor of former spouse (including appointments as executor, guardian, or trustee)

Question 7

Revocation - Pretermitted Children

Answer 7

• most states have pretermitted child statutes
• if testator fails to provide in their will for child born or adopted after execution, child takes share computed using statutorily provided formulas
• in many states, if entire estate left to pretermitted child’s other parent, child won’t receive a forced share
• share usually comes out of the residue -> revokes the will to the extent it takes some of this residue away

Question 8

Revocation by Physical Act - General Concept

Answer 8

• will or codicil can be revoked by burning, tearing, canceling, or obliterating a material portion of the will w/ intent to revoke
  -> intent must be concurrent w/ the act
• if will destroyed accidentally or by mistake, no revocation occurs

Question 9

Proxy Revocation

Answer 9

• testator may direct someone else to destroy or cancel the will
• BUT under the law of most states, the physical act must be done at testator’s request + in testator’s presence

Question 10

Partial Revocation

Answer 10

• most statutes authorize partial revocation by physical act if sufficient ev that testator made the changes
• extrinsic ev is admissible to determine whether partial or total revocation was intended
• some states give no effect to the changes though + probate the will as originally written

Question 11

Effect of Revocation on Other Testamentary Instruments

Answer 11

• revocation of a will revokes all codicils to it
• BUT revocation of a codicil to a will does NOT revoke entire will
• if will executed in duplicate, an act of revocation to EITHER copy revokes the will (unless ev that testator destroyed one copy to prevent confusion)
• destruction of an UNexecuted copy w/ intent to revoke does not revoke will

Question 12

Revocation by Written Instrument - General Concept

Answer 12

• all or part of will may be revoked or altered by a subsequent instrument that is executed with the same formalities as a will
• can have express revocation or revocation by inconsistency

Question 13

Express Revocation

Answer 13

• subsequent instrument may expressly revoke the earlier will

Question 14

Revocation by Inconsistency

Answer 14

• if new instrument COMPLETELY disposes of testator’s property, the old will is completely revoked by inconsistency
• if new instrument PARTIALLY disposes of testator’s property, old will revoked only to the extent of the inconsistent provisions

Question 15

Presumption of No Revocation

Answer 15

• if a will is found in a “normal location” + there are no suspicious circumstances, there’s a presumption that the testator didn’t revoke it

Question 16

Presumption of Revocation

Answer 16

• if will last seen in 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
• BUT if will was last seen in possession of a third person or if a person adversely affected by its contents had access to the will, no presumption of revocation arises
• extrinsic ev is admissible to overcome presumption of revocation

Question 17

Lost or Destroyed Wills

Answer 17

• if will is lost or destroyed (AND presumption that testator revoked it is overcome), it may be admitted to probate if following can be proven:
  1) valid execution
  2) the cause of nonproduction (proof will was not revoked) AND
  3) contents of the will
• contents are usually proved by testimony of at least 2 witnesses, or by production of a carbon or photocopy of the will

Question 18

Revival of Revoked Wills - Potential Approaches

Answer 18

• UPC approach: look at testator’s intent
• automatic revival approach
• no revival approach

Question 19

Revival - UPC approach

Answer 19

• also in many states
• if a will that wholly revoked a previous will is thereafter revoked, 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
• if the original will was only partly revoked, the revoked provisions are revived unless evident from the circumstances or the testator’s statements that testator did not intend to revive the provisions

Question 20

Revival - Automatic Revival Approach

Answer 20

• revival automatic under theory that revoking will did not take effect b/c that revocation was revoked prior to testator’s death

Question 21

No Revival Approach

Answer 21

• will, once revoked, not revived even when the subsequent will is itself revoked
• revocation clause is effective when executed just like a revocation by physical act
• earlier will can be revived only if it is re-executed (re-signed and witnessed) or republished by a validly executed codicil

Question 22

Express Conditional Revocation

Answer 22

• testator may state in the revoking instrument that a revocation is effective upon the happening (or non-happening) of a named event

Question 23

Implied Conditional Revocation or Dependent Relative Revocation - Basic Fact Pattern

Answer 23

• Testator executes valid WIll 1
• Testator validly revokes Will 1
• Testator executes Will 2, but Will 2 is invalid (ex wasn’t properly witnessed)

Question 24

Dependent Relative Revocation - Basic Concept

Answer 24

• applies when a testator revokes their will under the mistaken belief that another disposition of their property (i.e. another will) would be effective
  -> BUT FOR this mistaken belief, testator would not have revoked the will
• SO if the other disposition fails, the revocation also fails + the will remains in force

Question 25

How to Determine Whether Dependent Relative Revocation Applies

Answer 25

Ask:
- was the revocation of Will 1 impliedly conditioned on the validity of Will 2?
- would Testator have preferred Will 1 over intestacy?

• the more similar the provisions 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 -> court will not apply DRR

Question 26

Uniform Probate Code - Harmless Error Statute

Answer 26

• applies to the attempted revocation or alteration of a will (in addition to applying to execution of wills)
• proponent must establish by clear and convincing ev that decedent intended the doc which does not meet the technical requirements for a valid will to be a partial or complete revocation of a will or an alteration of the will