Revocation of Wills Flashcards
How long does a person have to revoke his will?
Revocation allowed as long as the person has testamentary capacity.
Even a will that the testator has contractually agreed not to revoke may be revoked, but the benes may then have a breach of K action against the estate.
What are the ways in which a will can be revoked?
By operation of law, by subsequent instrument, or by physical act.
When a will is revoked by operation of law in the case of pretermitted children:
Under the pretermitted child statute, if a testator fails to provide in his will for a child born or adopted after the will’s execution, the child is entitled to a share of the estate. In making up that share, general abatement rules apply. Thus, the will is revoked to the extent necessary to make up the child’s share.
Will revocation by operation of law
Can happen in the following ways:
- Marriage following execution of will
- Divorce or Annulment
- Pretermitted children
When a will is revoked by operation of law in the case of marriage after execution of a will:
The pretermitted spouse takes an intestate share.
If a person marries after executing a will and the spouse survives the testator, the new spouse takes an intestate share of the testator’s estate as a “pretermitted spouse.”
Exceptions:
- If it is waived in a valid ante- or post-nuptial agreement,
- If the will includes a gift to the spouse in contemplation of marriage, or
- If the will discloses an intention not to make a provision for the spouse.
When a will is revoked by operation of law in the case of divorce or annulment:
In Florida and most states, divorce or annulment revokes all provisions in favor of the former spouse.
The will is read as if the former spouse predeceased the testator on the date the judgment of divorce or annulment was entered. Unlike most states, Florida applies the same rule to revocable trusts, life insurance policies, and any other interest that transfers to a spouse at death.
If the divorced spouses remarry, the provisions in favor of the spouse are revived.
Will revocation by written instrument
All or part of a will may be revoked or altered by a subsequent instrument executed with the same formalities as a will.
If the subsequent testamentary instrument does not expressly revoke the earlier will, the two are read together, with the later instrument revoking the earlier only to the extent of inconsistent provisions.
Will revocation by physical act
A will or codicil can be revoked by burning, tearing, canceling, defacing, obliterating, or destroying it with the intent to revoke.
The intent must be concurrent with the act.
The physical act may be performed by another if done at the testator’s direction and in his presence.
Presumptions as to revocation
If a will last seen in the testator’s possession or under his control cannot be found after his death or is found in a mutilated condition, a rebuttable presumption arises that the testator revoked it.
No partial revocation by physical act
Most states, BUT NOT FLORIDA, permit an executed will to be partially revoked by physical act, e.g. by striking out a clause. In Florida, the stricken clause is given effect as if nothing had been done to it.
Effect of revocation on other testamentary instruments
When a will has been executed in duplicate, an act of revocation done to either copy revokes the will. The revocation of a will revokes all codicils to it, but revocation of a codicil to a will does not revoke the entire will.
Note that there is no revival of revoked wills in Florida. Once a will is revoked by language in a later will, it cannot be revived unless it is reexecuted or republished.
Lost or destroyed wills
If a will is lost or destroyed (and the presumption that the testator revoked it is overcome), the specific contents of the will must be proved by the testimony of two disinterested witnesses or by one disinterested witness and a photocopy or carbon copy (but not a draft) of the will.
Dependent relative revocation
The doctrine of dependent relative revocation (“DRR”) 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.
If the other disposition fails, the revocation also fails and the will remains in force.
DRR is applied only if it comes closer to what the testator tried (but failed) to do than would an intestate distribution.
Joint and mutual wills
A joint will is a will of two or more persons executed as a single instrument.
Mutual wills are separate instruments with reciprocal provisions.
Contractual wills
A testator may enter into a K to make a will, to make a gift by will, or not to revoke her will.
In a typical will K, the parties agree on the terms of their wills and provide that the survivor will not revoke his will after the other’s death. Technically, the survivor may revoke the will anyway and have his new will probated, but the benes of the revoked contractual will may sue to have a constructive trust imposed on the estate assets in their favor.
In Florida, all Ks relating to wills must be in writing and signed by the agreeing party in the presence of 2 attesting witnesses, and execution of a joint will or mutual will does not create a presumption of a K to make a will or a K not to revoke.
