Revocation of Wills

Question 1

Revocation

Answer 1

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

Question 2

Revocation Methods

Answer 2

A will may be revoked by:

(1) operation of law;
(2) a subsequent instrument;
(3) a physical act

Question 3

Marriage After Will Execution (Operation of Law)

Answer 3

Most States – Marriage following the execution of a will has NO EFFECT on the earlier will.

UPC and Some States – The new spouse will take an intestate share as an “omitted spouse” UNLESS:

• the will makes provision for the new spouse;
• the omission was intentional; or
• the will was made in contemplation of the marriage

Question 4

Divorce or Annulment After Will Execution (Operation of Law)

Answer 4

Most States: Divorce or annulment revokes ALL gifts and appointments in favor of ex-spouse.

UPC and Some States: Divorce or annulment revokes ALL gifts and appointments in favor of ex-spouse AND ex-spouse’s relatives who are not relatives of the testator.

• The divorce must be final for revocation to occur.
• If the parties remarry, the revocation does not occur.
• Property that would have gone to the ex-spouse passes under the terms of the will as if ex-spouse has died first.

Question 5

Slayer Statute (Operation of Law)

Answer 5

A beneficiary murders or causes the death of the testator, will NOT be able to take from testator’s estate.

Instead the slayer beneficiary’s profits get put in a constructive trust and those profits are given to someone else.

Question 6

Pretermitted Children Statutes

Answer 6

Purpose: Provide a share for a left out child on the assumption that the testator would have provision for the child had the testator thought about it.

Procedure: If testator fails to provide for any child born or adopted after the execution of the will, the child takes a share computed using the statutorily provided formulas.

Question 7

Revocation by Physical Act

Answer 7

A will or codicil can be revoked by burning, tearing, canceling, or obliterating a material portion of the will WITH THE INTENT TO REVOKE.

Requirements:

(1) Intent to Revoke – Testator must intent to revoke the will; an accidental or mistaken physical act is not a valid revocation.

(2) Mental Capacity to Revoke – A destruction that is induced by lack of capacity, undue influence, fraud, distress or intoxication is NOT a valid revocation.

(3) Physical Act – Testator must rip, burn, write “void” across the will, etc.

Question 8

Proxy Revocation

Answer 8

A testator may direct someone else to destroy or cancel the will.

Most states require that the physical act must be done: (1) at the testator’s request and (2) in the testator’s presence.

Question 9

Partial Physical Revocation

Answer 9

States vary on the validity and manner of partial revocation by physical act. LOOK AT THE FACT PATTERN.

Most Statutes: Authorize partial revocation if there is sufficient evidence that the testator made the changes. Extrinsic evidence is admissible to determine whether a partial or total revocation was intended.

Question 10

Effect of a Revocation on Other Testamentary Instruments

Answer 10

Revocation of a will = revocation of all codicils to it.

Revocation of a codicil DOES NOT revoke the entire will.

Revocation of a will validly revokes any duplicates.

Exception: Destruction of an unexecuted copy with intent to revoke does not revoke the will.

Question 11

Revocation by Subsequent Will or Codicil

Answer 11

• Subsequent will or codicil must meet formal requirements.

Types:
(1) Express Revocation
(2) Revocation by Inconsistency

Question 12

Express Revocation by Subsequent Written Instrument

Answer 12

The subsequent instrument expressly revokes earlier will(s).

Ex: “I hearby revoke all prior wills and codicils”.

NOT VALID: “This is my last will.” because no express language here.

Question 13

Revocation by Inconsistency in Subsequent Written Instrument

Answer 13

If new will completely disposes of testator’s property –> Old will is COMPLETELY revoked by inconsistency.

If new will PARTIALLY disposes of testator’s property –> old will is revoked only to the extent of the inconsistent provisions.

Question 14

Revocation – Burden of Proof

Answer 14

The person that wants to prove the will is valid has the burden of proving that the will was not revoked.

Question 15

Presumption of No Revocation

Answer 15

There is a presumption of no revocation if will is found in normal location and there are no suspicious circumstances.

Normal locations: safe deposit box, filing cabinet, where other valuables of the testator can be found, with testator’s attorney, etc.

Question 16

Presumption of Revocation

Answer 16

If the will was in testator’s possession but can’t be produced after death, there is a presumption that the testator revoked the will.

The presumption of revocation also applies if the will is found in a mutilated condition or if the proponent does not have the original will.

Extrinsic evidence is admissible to overcome the presumption of revocation

Question 17

Lost or Destroyed Wills

Answer 17

If a will is lost or destroyed, it may be admitted to probate, if proponent can prove:

(1) Valid Execution;

(2) the cause of non-production (aka proof that the will was not revoked); and

(3) the contents of the will
- contents are proven by testimony of at least 2 witnesses or by the production of a carbon/photocopy of the will.

Question 18

Revival of Revoked Wills

Answer 18

Three Approaches to Revival of Revoked Wills:

(1) UPC Approach
(2) Automatic Revival Approach
(3) No Revival Approach

Which approach to apply will depend on the fact pattern; if nothing mentioned in the fact pattern, go through all three approaches.

Question 19

UPC Approach to Revival of Wills

Answer 19

If subsequent will that COMPLETELY revoked previous will is revoked –> previous will remains revoked UNLESS it is evidence from circumstances or testator’s statements that testator intended to revive the previous will.

If partial revocation of original will –> revoked provisions are revived, unless circumstances or testator’s statements show that testator did not intend to revive the provisions.

Question 20

Automatic Revival Approach

Answer 20

Revival is automatic under the theory that revoking will did not take effect because it was revoked prior to the testator’s death.

Question 21

No Revival Approach

Answer 21

A revoked will is not revived when the subsequent will is itself revoked.

The revocation clause is effective when executed. The earlier will can be revived only if it is re-executed or republished by a validly executed codicil.

Question 22

Express Conditional Revocation

Answer 22

When a testator says that the revoking instrument is effective upon the occurrence or non-occurrence of a named event.

VERY RARE.

Question 23

Implied Conditional Revocation/ Dependent Relative Revocation (“DRR”)

Answer 23

Applies when a testator revokes their will under the mistaken belief that another will would be effective (valid), and but for this mistaken belief, the testator would not have revoked the will.

If the new will is invalid for some reason and old will was effectively revoked, courts will look at two things to determine if DRR applies and new will should be effective despite invalidity.

Court looks at:
(1) Was the revocation of Will 1 impliedly condition on the validity of Will 2?

(2) Would Testator have preferred Will 1 over intestacy?

• The more similar the provisions of the two wills are, the more likely the court will apply DRR.
• The more different, the more likely that the testator would have preferred intestacy and so court will decline DRR.

Question 24

Harmless Error Statute

Answer 24

UPC’s harmless error statute that applies to the execution of wills also applies to the attempted revocation or alteration of a will.

Proponent must establish by CLEAR AND CONVINCING evidence that decedent intended the document to be a partial or complete revocation of a will or an alternation of the will.