Revocation of Wills Flashcards
Revocation by Physical Act
Will must be burned, torn, canceled, obliterated (erased), or destroyed with SIMULTANEOUS INTENT to revoke
If revocation is performed by another person, destruction must take place IN THE PRESENCE of the testator
Extrinsic evidence admissible to show whether testator intended partial or full revocation if only part of the will was destroyed
Destruction of a duplicate
physical destruction of one of two executed duplicate copies revokes the will entirely
Destruction of a codicil
does NOT revoke a will, even if the testator so intends
NOTE: physical destruction of a WILL revokes all codicils thereto written, unless intent otherwise
NOTE: when will and codicil are on the SAME piece of paper, defacing the will revokes the codicil, but defacing the codicil does not revoke the will, unless the testator so intends
Increase by physical act
Testator CANNOT increase a gift to a beneficiary by crossing out
Example “i leave my farm to X and Y” and testator crosses out Y. X does not take Y’s 1/2
Holographic Codicil
Remember both the beneficiary NAME and GIFT must be in handwriting. Thus if cross out earlier gift to put in a new one, still would need to handwrite the name as well or else beneficiary gets NOTHING (but note DRR)
Mutilated Will
If a will is found in a mutilated condition at testator’s death, rebuttable presumption that testator mutilated the will with the intent to revoke
Omitted Spouse
When there exists a surviving spouse who married decedent after executing testamentary instruments, and spouse is not provided for in any testamentary instruments (will, codicil, trust)
Spouse receives her 1/2 community property and QCP share and her INTESTATE share of her decedent’s separate property
NOTE: intestate share MAY NOT exceed 1/2 of the value of the decedent’s separate property in the estate
Exceptions to Omitted Spouse doctrine
(1) Decedent’s failure to provide for the spouse in testamentary instruments was intentional, and that intention appears on the face of the testamentary instruments
(2) Decedent provided for the spouse by transfer outside of the testamentary instruments with the intention that the transfer be in lieu of any testamentary provision
(3) omitted spouse signs a written waiver before or during marriage (must meet prenuptial agreement requirements)
Omitted Domestic partner
Same as omitted spouses
omitted Child
A child born or adopted after all testamentary instruments have been executed, and is not provided for in any testamentary instrument
Child receives a share of the decedent’s estate equal in value to what which the child would have received if decedent died intestate w/ no will
If testator fails to provide for a child solely b/c unaware of child’s birth or believes child to be dead, child will receive a share equal to what he would have received intestate
NOTE: a child born before a republication of the will is NOT considered omitted and thus is not entitled to the protection of the statute. Presumed to be intentionally omitted.
Exceptions to omitted child doctrine
Same exceptions: (1) decedent’s failure to provide was intentional and intention appears on the face of testamentary instruments;
(2) at the time of execution of the testamentary instrument, decedent had one or more children and transferred by will substantially all of his estate to the parent of the omitted child;
(3) decedent provided for the child by transfer outside the testamentary instrument with the intention that the transfer is in lieu of any testamentary provision
Final Dissolution of Marriage or DP
When the testator’s marriage or domestic partnership is dissolved or annulled after executing the will (NOTE: legal separation is insufficient to revoke)
Any provision conferring a power of appointment on the former spouse, or making him or her executor, trustee, conservator, or guardian, is REVOKED
Also, the devise itself is revoked
NOTE: rules do not apply if the will expressly states otherwise
Reinstatement by Remarriage
The devise is reinstated if the will is unchanged and the testator remarries the former spouse, or reestablishes another DP with the former DP
Dependent Relative Revocation
Applies when a testator revokes his will under the mistaken belief that another disposition of his property would be effective and, but for this mistaken belief, he would not have revoked the will
Usually would revoke codicil and the prior gift, but would bring back the prior gift if applied
NOTE: applies only if the interlineation was for more than the cancelled provision
Revival
When testator executes Will 2, which revokes Will 1, then revokes will 2 (either by physical act or subsequent instrument
Physical Act: Will 1 is revived only if testator manifests an intent to revive Will 1. Parol evidence at the time Will 2 was revoked is admissible (e.g. saying “Will 1 is back in operation”)
Subsequent instrument: Will 1 is NOT revived unless it appears from the TERMS OF THE CODICIL (subsequent instrument) that testator wanted will 1 revived (no parol evidence)
