Revocation of Wills Flashcards
UPC section on revocation?
2-507
Four ways to revoke a will
By subsequent writing
By physical act
By presumption of physical act, or
By operation of law
How is a will revoked by subsequent writing?
Will 2 revokes will 1
(a) The new will must satisfy Wills Act formalities to revoke the first
2 types of subsequent revocation
(a) Express revocation
Express revocation is when there is a clear and express state of the intent to revoke the prior will
Example: “I, Jane Doe, a resident of _____, ___, make this my will and revoke all prior wills and codicils.”
(b) Implied revocation (aka revocation by inconsistency)
Revocation by inconsistency occurs when the subsequent will disposes of the decedent’s property in a way that is inconsistent with the prior will. Because the later expression of the testator’s intent controls over the prior in time expression of intent, the prior will is deemed revoked to the extent of any inconsistencies
How is a will revoked by physical act
Will may be revoked by a physical act as long as the act is destructive in nature (burning, tearing, obliterating) and is performed with the intent to revoke
how is a will revoked by presumption of physical act
When a will, known to be in the presence of the testator before death but not found after death – the presumption is that the testator was the one who revoked it
(a) The presumption can only be overcome by clear and convincing evidence of the contrary
(b) If the presumption is not overcome = will is deemed revoked
(c) If presumption is rebutted = will is deemed “lost” and extrinsic evidence is admitted to prove the terms of the will
How is a will revoked by operation of law
Divorce
Subsequent marriage
Birth of children
Revocation by operation of law: divorce
(1) Deletes all reference to a former spouse in a will by operation of law
(2) UPC 2-804
a. Goes even further:
i. Also revokes all mention of any relatives of the ex-spouse who aren’t relatives of decedent
ii. Revokes former spouse’s right to any non-probate property
Revocation by operation of law: subsequent marriage
(1) A subsequent marriage that occurs after the will is draft will automatically revoke that will by operation of law up to the new spouses intestate share
a. UNLESS – it’s clear from the surrounding circumstances that the will was actually made in anticipation of the marriage
Revocation by operation of law: birth of children
(1) Common law states – Children born after the execution of a will, who were never added to the will, will receive their intestate shared UNLESS it appears the omission of the child was deliberate
(2) Statutory states – Pretermission
Revocation of copies
b) Revocation of a copy does not revoke the original, UNLESS the testator mistakenly thought he was revoking the original
i. To prove this: need clear and convincing evidence
Partial revocation by physical act (main rule)
Partial revocation means crossing out or scratching out a portion of the will
Partial revocation by physical act (majority view)
UPC 2-507
a) A cross-out and signature is sufficient as a partial revocation
b) In a holographic state, same as above applies
Partial revocation by physical act (minority view)
a) A will cannot be revoked in part by act of revocation; it can be revoked in part only by subsequent writing
What is interlineation
a) Meaning substitution amounts or devises or parties
b) Interlineation is never accepted in any states
i. Exception – if the written substitution is complete enough to qualify as a holographic codicil in jurisdictions that recognize holographs
c) Example:
i. Crossing out $30 and to write $300 instead
