Revocation of Wills

Question 1

What are the ways that a will can be revoked?

Answer 1

by operation of law, by subsequent instrument, and by physical act.

Question 2

Can a testator who has contracted to not revoke a will still revoke a will?

Answer 2

Yes, but the other party has a claim for breach.

Question 3

In most states, marriage following the execution of a will . . .

Answer 3

has no effect on the earlier will.

Question 4

Under the UPC, marriage following the execution of a will . . .

Answer 4

causes the spouse to take an intestate share as an omitted spouse unless 1) the will makes provisions for the new spouse; 2) the omission was intentional; and 3) the will was made in contemplation.

Question 5

In most states, divorce or annulment following the execution of a will . . .

Answer 5

revokes all gifts and appointments in favor of the former spouse.

Question 6

Under the UPC, divorce or annulment following the execution of a will . . .

Answer 6

revokes all gifts and appointments in favor of the former spouse AND the former spouse’s relatives.

Question 7

What does a pretermitted child statute do?

Answer 7

It states that where a child is born following the execution of a will, the child will takes an intestate share of the estate.

Question 8

What must a subsequent instrument have in order to properly revoke a former will in whole or part?

Answer 8

It must meet the same formalities for the creation of a will.

Question 9

What happens when a subsequent instrument does not expressly revoke the former will in whole or in part?

Answer 9

The two documents are compared. Where the two conflict, the latter document prevails. All consistencies are maintained.

Question 10

To revoke a will by physical act, the testator must destroy a ____________ part of the will.

Answer 10

material

Question 11

Where a testator accidentally destroys their will, is there a revocation?

Answer 11

No, because it was an accident, i.e. the testator did not have the intent to revoke. The testator must have the intent to revoke at the time the will is destroyed. If she does not, the will is not revoked.

Question 12

Can a will be revoked in part?

Answer 12

Yes.

Question 13

When is there a presumption that a will has been revoked?

Answer 13

when the will was last seen in the testator’s possession or under their control, and cannot be located after the testator has died.

Question 14

When is there not a presumption that a will has been revoked?

Answer 14

Where the will was last seen with a third party or a person who was negatively affected by the will.

Question 15

A destroys a copy of his will which was not executed. He has the intent to destroy. Valid?

Answer 15

No, because the will was not executed. An unexecuted will cannot be revoked by physical act.

Question 16

Under the UPC, when will a previous will that was completely revoked be revived?

Answer 16

Only where the circumstances or testator’s statements evince intent to revive.

Question 17

Under most states, when will a previous will be revived?

Answer 17

automatically upon the revocation of the subsequent will.

Question 18

Under the UPC, when will a will that was only partially revoked be revived?

Answer 18

It will automatically be revived upon revocation of the subsequent will unless it is evident that was not the intent.

Question 19

Dependent Relative Revocation

Answer 19

where a testator revokes his will under the mistaken belief that another disposition of his property would be effective, and but for his mistaken belief, he would not have revoked the will. If the other disposition fails, the revocation of the previous will fails, too, and the first will remains in force.