Revocation of Wills Flashcards
Revocation by Physical Act
Requires:
1) Intent to revoke; and
2) physical act: “burned, torn, canceled, obliterated, destroyed.”
Act of Revocation on Duplicates
An act of revocation on one executed copy revokes all executed copies. BUT, cannot revoke a will by destroying only a copy of the will.
Act of Revocation on the back of will
Most states: no revocation. Cancellations must cross off some of the language of the will to be effective
UPC: canceled. Act of cancellation can appear anywhere on the will.
Two fact patterns that raise the presumption that the will has been revoked:
1) Will in T’s possession from time of execution until death and is found mutilated after T’s death. Presumption is that T did mutilating with intent to revoke.
2) Will last seen in T’s possession and control and is not found after T’s death. Presumption is that the will can’t be found because T destroyed it with the intent to revoke.
Revocation by Proxy
Revocation by another person must be:
1) done at T’s direction
2) in T’s presence
Lost Wills Statute
If a will was destroyed and not revoked, the lost wills statute allows it to be probated if proponents can show the contents of the lost will. Usually proven by a copy and one witness or other “clear and convincing proof.”
Cause of action against attorney for improper execution of will:
Attorney can be sued in negligence under tort law.
Codicil
An amendment to a will. It must be executed with the same formalities as a will.
Revocation by Inconsistency
Where a codicil makes no reference to a will but contains slightly inconsistent provisions, to the extent possible, the will and codicil are read together. But to the extent of any inconsistent provisions, the later document controls and thereby revokes by inconsistency the prior will.
When there are two wills and the second does not in terms revoke the first
1) if the second will has no residuary clause, it is presumptively a codicil to the first. There is an implied revocation only to the extent of the inconsistency
2) If the second will has a residuary clause, the second will revokes the first will in its entirety by inconsistency.
Revocation of a will vs. revocation of a codicil
Revocation of a will revokes all codicils thereto. BUT, revocation of a codicil to a will does not revoke the will.
Impact of Divorce on Will
UPC and most states: Divorce following a will revokes all provisions in favor of ex-spouse. Construe will as if ex-spouse were dead.
Mere separation does not effect parties’ rights under will unless coupled with complete property settlement. Then the agreement is treated as a waiver and the will is construed as if ex-spouse is dead.
Wills can be revoked in entirety or _______
in part. Drawing a line through a portion of the will revokes that portion
Can interlineation (substituting a term in the will after execution) be given effect>
NO, unless:
1) sometime after the change, T re-executes the will, OR
2) T re-publishes the will be codicil
Dependent Relative Revocation (DRR)
A mistake remedying doctrine. Allows us to disregard a revocation which is based on, induced by, or premised on a mistake of law or fact if the court is satisfied that, but for the mistake, T never would have made the revocation. Application:
1) If ineffective gift is a larger amount –> discuss DRR and apply it (undo ineffective gift)
2) If ineffective gift is a smaller amount –> discuss DRR but decline to apply it.
