Revocation of wills Flashcards
Revocation ability generally
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
Revocation by operation of law - marriage after execution
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
Revocation by operation of law - divorce or annulment
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
Revocation by operation of law - divorce and ex-spouses kids
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
Revocation by operation of law - pretermitted children
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
Revocation by physical act generally
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
Revocation by physical act - intent to revoke
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
Revocation by physical act - proxy revocation
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
Revocation by physical act - partial revocation
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
Revocation by physical act - effects on other testamentary instruments
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
Revocation by written instrument - generally
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
Revocation by written instrument - express revocation
The subsequent instrument may expressly revoke the earlier will
Revocation by written instrument - revocation by inconsistency
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
Will found in normal location and presumption
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
Will cannot be found or found in possession of third party and presumption
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
Lost or destroyed wills
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
Revival of revoked wills fact pattern
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?
UPC approach - revival of revoked wills
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
Automatic revival approach - revival of revoked wills
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
No revival approach - revival of revoked wills
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
Express conditional revocation
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
Fact pattern involving dependent relative revocation and determining whether DRR applies - conditional revocation
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
Doctrine of dependent relative revocation
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
Harmless error test
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
