Revocation of Wills

Question 1

When can a will be revoked?

Answer 1

A person who has testamentary capacity can revoke at anytime. Contracts not to revoke cannot be enforced.

Question 2

When may a will be revoked by law?

Answer 2

In the event of subsequent marriage, divorce, or birth or adoption of children.

Question 3

What is an elective share?

Answer 3

An elective share is a term used in American law relating to inheritance, which describes a proportion of an estate which the surviving spouse of the deceased may claim in place of what they were left in the decedent’s will.

Question 4

What is the effect of subsequent marriage on a will?

Answer 4

Usually nothing because the spouse it presumed to be protected by elective share. However, in a minority of states and under the UPC, the will is revoked to the extent necessary to give the surviving spouse the intestate share they are entitled to.

But, no share is made if (i) the will makes a provision for the new spouse, (ii) the will provides that the spouse’s omission was intentional, or (iii) it appears that the will was made in contemplation of the marriage.

Question 5

What is the effect of subsequent divorce on a will?

Answer 5

The former spouse loses all gifts and appointments.

The UPC extends this to all the former spouse’s relatives and all gifts or fiduciary appointments in the decedent’s revocable inter vivos trust.

Question 6

What is the effect of subsequently born children on a will?

Answer 6

The pretermitted child is entitled to a share of the estate equal to what he would have taken if the decedent had died intestate.

This comes out of the residuary estate, and the will is revoked to that extent.

Question 7

Can a subsequent will or codicil revoke a prior will?

Answer 7

Yes. As long as there is (i) a present intent to revoke and (ii) the instrument is executed with the same formalities as are required for the execution of the will.

Question 8

What happens when a secondary testamentary instrument conflicts with a prior instrument and doesn’t explicitly revoke the prior instrument?

Answer 8

The secondary instrument is treated as a codicil. To they extent they conflict, the secondary instrument controls.

Question 9

Can a will be revoked by a physical act?

Answer 9

Yes. Each state has statutes that define what is necessary. Typically these acts are burning, tearing, obliterating, or canceling a material portion of the will.

Question 10

What is required in order to revoke a will by physical act?

Answer 10

The intent to revoke at the time the act is committed.

Question 11

Can a proxy revoke a will?

Answer 11

Yes, if he acts (i) at the testator’s direction and (ii) in the testator’s presence.

Question 12

Is partial revocation permissible?

Answer 12

Yes. Extrinsic evidence is used to determine what the testator intended to revoke.

Question 13

Can partial revocation result in the increase in gifts?

Answer 13

Only residuary gifts can be increased. Specific gifts cannot be increased.

E.g., the testator cannot revoke a remainder interest in order to create a fee simple for the life tenant by mere revocation. But, the testator could strike out the entire life estate and remainder and let the property pass to the residuary.

Question 14

When does a presumption of revocation arise?

Answer 14

1. Missing Will — When a will cannot be found and it was last seen in the testator’s possession.
2. Mutilated Will — the will is found after testator’s death in a mutilated condition

Question 15

Can the presumption be overcome?

Answer 15

Yes. By extrinsic evidence.

Question 16

When is probate of an accidentally lost or destroyed will appropriate?

Answer 16

When the following can be proven: (i) the will was validly executed, (ii) the cause of the non production can be shown, and (iii) the contents of the will can be shown.

Question 17

When can a will be revived?

Answer 17

Majority: when the revoking instrument is revoked it is revived automatically.

Minority: only when it is re-executed or republished by a validly executed codicil.

Question 18

What is dependent relative revocation?

Answer 18

It is when a court sitting in equity disregards a revocation.

Question 19

When is dependent relative revocation appropriate?

Answer 19

When

(i) the act of revocation was premised on a mistake of law or fact and would not have occurred but for the testator’s mistaken belief that another disposition of property was valid; and
(ii) the revoked will comes closer to achieving what the testator tried to do by revocation than intestacy could

Question 20

Does harmless error apply to revocation?

Answer 20

Yes. If there is clear and convincing evidence that revocation was intended, then revocation will be effectuated.