Revocation of Wills Flashcards
Revocation
A person with testamentary capacity may revoke their will at any time prior to death.
Revocation Methods
A will may be revoked by:
(1) operation of law;
(2) a subsequent instrument;
(3) a physical act
Marriage After Will Execution (Operation of Law)
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
Divorce or Annulment After Will Execution (Operation of Law)
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.
Slayer Statute (Operation of Law)
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.
Pretermitted Children Statutes
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.
Revocation by Physical Act
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.
Proxy Revocation
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.
Partial Physical Revocation
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.
Effect of a Revocation on Other Testamentary Instruments
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.
Revocation by Subsequent Will or Codicil
- Subsequent will or codicil must meet formal requirements.
Types:
(1) Express Revocation
(2) Revocation by Inconsistency
Express Revocation by Subsequent Written Instrument
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.
Revocation by Inconsistency in Subsequent Written Instrument
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.
Revocation – Burden of Proof
The person that wants to prove the will is valid has the burden of proving that the will was not revoked.
Presumption of No Revocation
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.
Presumption of Revocation
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
Lost or Destroyed Wills
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.
Revival of Revoked Wills
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.
UPC Approach to Revival of Wills
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.
Automatic Revival Approach
Revival is automatic under the theory that revoking will did not take effect because it was revoked prior to the testator’s death.
No Revival Approach
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.
Express Conditional Revocation
When a testator says that the revoking instrument is effective upon the occurrence or non-occurrence of a named event.
VERY RARE.
Implied Conditional Revocation/ Dependent Relative Revocation (“DRR”)
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.
Harmless Error Statute
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.
