Revocation of Wills

Question 1

Revocation of Wills in General

Answer 1

Will can be altered or revoked at any time until testator dies

Question 2

Three Ways to Revoke a Will

Answer 2

(1) Subsequent Instrument
(2) Physical Act
(3) Operation of Law

Question 3

Revocation by Subsequent Instrument: Express

Answer 3

Revoked by terms of a later writing that meets the requirements of an attested will

Ex: T-Bone validly executes Will 1. Later, T-Bone executes Will 2, which includes the following clause: “Will 1 is hereby revoked.” Will 2 is now the operative document.

Question 4

Revocation by Subsequent Instrument: Inconsistency

Answer 4

Later writing is inconsistent with prior will

Later document that meets the requirements of an attested will controls

Question 5

Revocation by Physical Act

Answer 5

Must mutilate or destroy will by a physical act of destruction

Testator must INTEND to revoke will

Question 6

Revocation by Physical Act: Partial Revocation

Answer 6

IN does NOT recognize partial revocation of will by physical act

Question 7

Revocation by Physical Act: Lost Wills

Answer 7

Rebuttable presumption that testator revoked will by physical act

Proponent has burden showing existence of will by preponderance of the evidence

Question 8

Revocation by Physical Act: Third Party

Answer 8

Third party can revoke on behalf of testator if:

(1) At testator’s DIRECTION; and
(2) In testator’s PRESENCE

Question 9

Revocation by Operation of Law

Answer 9

Divorce/annulment revoke all will provisions in favor of former spouse

Question 10

Revival: Express Revocation

Answer 10

Revocation of a subsequent will does NOT automatically revive prior will

If testator does not execute new will, then intestate succession

Question 11

Revival: Revocation by Inconsistency

Answer 11

If first will is revoked by inconsistency, and then second will is itself revoked, first will IS REVIVED

Question 12

Revival: Re-Execution or Republication

Answer 12

If a second will is revoked, the testator can re-execute the first will, effectively reviving it

Testator can also execute a codicil to the first will that republishes and re-executes it

Question 13

Revival: Dependent Relative Revocation

Answer 13

ONLY APPLIES TO REVOCATION BY PHYSICAL ACT

Equitable doctrine that undoes revocation of a will

Basic idea is that testator would prefer the revoked will over intestate succession

At the time the prior will was revoked, testator MUST have had present intention to make new will

Question 14

Contract Not to Revoke

Answer 14

Existence of a joint will does not automatically create a contract not to revoke

Parties must explicitly create a contract not to revoke in order for it to be enforceable