Revocation of wills

Question 1

Revocation ability generally

Answer 1

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

A will may be revoked by
- operation of law
- subsequent instrument
- physical act

Even a will that the testator has contractually agreed not to revoke may be revoked
- but the beneficiaries may then have a breach of contract action against the estate

Question 2

Revocation by operation of law - marriage after execution

Answer 2

In most states, marriage following execution of a will has no effect on the earlier will

In some states and under UPC, the new spouse takes an intestate share as an omitted spouse unless
- the will makes a provision for the new spouse
- the omission was intentional, or
- the will was made in contemplation of the marriage

Question 3

Revocation by operation of law - divorce or annulment

Answer 3

In most states, divorce or annulment following execution of a will revokes all gifts and fiduciary appointments in favor of the former spouse
- will is valid and is read as if the ex-spouse predeceased the testator

Divorce must be final and if re-marry, revocation does not occur

Question 4

Revocation by operation of law - divorce and ex-spouses kids

Answer 4

In most states, the children will still take because the divorce revokes only gifts to the ex-spouse

The UPC and some non-UPC states extend the application of the rule to provisions in favor of the former spouse’s relatives who are not relatives of the testator

Question 5

Revocation by operation of law - pretermitted children

Answer 5

Most states hav pretermitted child statutes

Purpose is to provide a share for a left out child on the assumption that the testator would have made a provision for the child had the testator thought about it

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

In many states, if the entire estate is left to the pretermitted child’s other parent, the child will not receive a forced share

Question 6

Revocation by physical act generally

Answer 6

Under a typical statute, a will or codicil can be revoked by burning, tearing, canceling, or obliterating a material portion of the will with the intent to revoke

Question 7

Revocation by physical act - intent to revoke

Answer 7

The testator must have the intent to revoke and the intent must be concurrent with the act

If will is destroyed accidentally or by mistake, no revocation occurs

Question 8

Revocation by physical act - proxy revocation

Answer 8

The 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 the testator’s request and in the testator’s presence

Question 9

Revocation by physical act - partial revocation

Answer 9

Most statutes authorize partial revocation by physical act 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

Some states give no effect to the changes and probate the will as originally written

Question 10

Revocation by physical act - effects on other testamentary instruments

Answer 10

The revocation of a will revokes all codicils to it, but revocation of a codicil to a will does not revoke the entire will

When a will has been executed in duplicate, an act of revocation done to either copy revokes the will unless there is evidence that the testator destroyed one copy to prevent confusion realizing that there can be only one last will

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

Execution of multiple original wills is not recommended

Question 11

Revocation by written instrument - generally

Answer 11

All or part of a will may be revoked or altered by a subsequent instrument that is executed with the same formalities as a will

Question 12

Revocation by written instrument - express revocation

Answer 12

The subsequent instrument may expressly revoke the earlier will

Question 13

Revocation by written instrument - revocation by inconsistency

Answer 13

If the new instrument completely disposes of the testator’s property, the old will is completely revoked by inconsistency

If the new instrument partially disposes of the testator’s property, the old will is revoked only to the extent of the inconcsistent provisions

Question 14

Will found in normal location and presumption

Answer 14

If a will is found in a normal location and there are no suspicious circumstances, there is a presumption that the testator did not revoke it

Question 15

Will cannot be found or found in possession of third party and presumption

Answer 15

If a will last seen in the testator’s possession or under their control cannot be found after their death or is found in a mutilated condition, rebuttable presumption arises that the testator revoked it

If the will was last seen in the 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 evidence is admissible to overcome the presumption of revocation

Question 16

Lost or destroyed wills

Answer 16

If a will is lost or destroyed and the presumption that the testator revoked it is overcome, it may be admitted to probate if the following can be proven
- valid execution
- cause of non production (proof that the will was not revoked), and
- the contents of the will

Contents are usually proved by testimony of at least two witnesses, or by production a carbon or photocopy of the will

Question 17

Revival of revoked wills fact pattern

Answer 17

Fact pattern involving the revival of revoked wills looks like
- testator executes valid will 1
- testator executes valid will 2 which expressly revokes will 1
- testator then validly revokes will 2
- is will 1 revoked?

Question 18

UPC approach - revival of revoked wills

Answer 18

Under UPC and 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 it is evident from the circumstances or the testator’s statements that the testator did not intend to revive the provisions

Question 19

Automatic revival approach - revival of revoked wills

Answer 19

In other states, revival is automatic under the theory that the revoking will did not take effect because it was revoked prior to the testator’s death

Question 20

No revival approach - revival of revoked wills

Answer 20

In some other states, a will, once revoked, is not revived when the subsequent will is itself revoked

The revocation clause is effective when executed just like a revocation by physical act

Earlier will can be revived only if it is re-executed or republished by a validly executed codicil

Question 21

Express conditional revocation

Answer 21

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

Very rare

Question 22

Fact pattern involving dependent relative revocation and determining whether DRR applies - conditional revocation

Answer 22

Fact pattern
- testator executes valid will 1
- testator validly revokes will 1
- testator executes will 2, but will 2 is invalid

Ask the following questions
- 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, more likely the court will apply DRR
- more different the wills, more likely the testator would have preferred intestacy

Question 23

Doctrine of dependent relative revocation

Answer 23

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

If the other disposition fails, the revocation also fails and the will remains in force

Question 24

Harmless error test

Answer 24

The 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 the decedent intended the document which does not meet the technical reqs for a valid will to be a partial or complete revocation of a will or an alteration of the will