Revocation of Wills

Question 1

General will revocation rules

Answer 1

1) can revoke at any time prior to death
2) may be revoked by operation of law, subsequent instrument, or physical act
3) even a will that testator has contractually agreed not to revoke may be revoked, but the beneficiaries may then have a breach of K action against the estate

Question 2

marriage or domestic partnership after execution of will

Answer 2

CA omitted heirs statute: protects surviving spouse or DP from being unintentionally omitted from a deceased spouse or DP’s will or revocable trust

surviving spouse or DP may take, in addition to share of CP and QCP, an intestate share of decedent’s estate (may not exceed 1/2 of value of decedent’s separate property in the estate)

Exceptions - will NOT receive share if:
1) intentional omission (intent appears on face of will or revocable trust)
2) spouse provided for with non-probate transfers
3) waiver/prenup (must be in writing and signed by waiving spouse/DP)
4) certain marriages where omitted spouse was (a) care custodian of dependent adult, (b) marriage began during or within 90 days from when care services last provided, and (c) decedent dies less than 6 months after marriage began

Question 3

effect of dissolution or annulment of marriage or DP on will

Answer 3

unless will expressly provides otherwise, any disposition of property made by will to former spouse or DP, any provision conferring power of appointment, and any provision nominating former spouse or DP as an executor/trustee/conservator/guardian is revoked
- property passes as if former spouse/DP predeceased testator

• remarriage or reestablishment of DP revives provision
• final divorce required (not just separation)

Question 4

pretermitted or omitted children

Answer 4

if decedent fails to provide for child born or adopted after execution of all testamentary instruments, child receives intestate share of property

requirements - child must be:
1) born or adopted after execution of all testamentary instruments,
2) alive when will was executed but thought to be dead, or
3) unknown to testator because testator was unaware of child’s birth
and will must not show intent to exclude

exceptions - does not receive share if:
1) intentional and intent appears on face
2) child provided for by transfer outside of will
3) decedent devised substantially all of the estate to the other parent of the omitted child OR
4) proof of intent to disinherit

to satisfy share, first take from portion of estate not disposed of by will or trust. if not enough, take from all beneficiaries in proportion to the value they may respectively receive under the will or trust

Question 5

what happens if beneficiary murders testator (slayers)

Answer 5

• killer deemed to predecease the decedent
• anti-lapse statute does not apply - killer’s issue cannot take
• proof of killing - preponderance of evidence whether killing was felonious or intentional. final judgment of conviction is conclusive
• if joint ownership - right of survivorship severed
• can’t receive benefit of insurance policy/bond etc

Question 6

revocation by physical act

Answer 6

will or codicil can be revoked by burning, tearing, canceling, obliterating, or destroying with simultaneous intent to revoke

• testator must be of sound mind
• proxy revocation must be done at testator’s request in testator’s presence
• partial revocation by physical act permitted (interlineation of a holograph constitutes both revocation of an altered provision and a valid new disposition, but increase by physical act not permitted unless residuary)
• revocation of one duplicate revokes all

Question 7

effect of revocation on other testamentary objects

Answer 7

• physical destruction of codicil does not revoke will even if testator so intends
• physical destruction of will revokes all codicils thereto written unless testator does not so intend
• when will and codicil are written on 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

Question 8

revocation by subsequent will or codicil

Answer 8

express revocation - may be revoked by later will or codicil executed with formalities required for valid will

implied revocation - revocation by inconsistency

Question 9

presumptions about revocation

Answer 9

• presumption of non-revocation if will is found in normal location and no suspicious circumstances surrounding it
• if will not found at death, presumed revoked
• if will lost or destroyed without being revoked (e.g., due to flood/fire/etc), admissible on proof of its contents in absence of statute to contrary
• revival of revoked wills - court will look at EE to determine what testator intended

Question 10

conditional revocation

Answer 10

• express conditional revocation
• implied conditional revocation or dependent relative revocation

Question 11

dependent relative revocation

Answer 11

applies when a testator revokes their will under the mistaken belief that another disposition of their property would be effective and but for this they would not have revoked the will
- appleid only if comes closer to what testator tried but failed to do than would intestate distribution