Revocation of Wills

Question 1

Can a person revoke their will?

Answer 1

A person with testamentary capacity may revoke their will at any time proper to death.

Question 2

How may a will be revoked?

Answer 2

(1) Operation of law
(2) Subsequent instrument
(3) Physical act

Question 3

What are the ways that a will may be revoked by operation of law?

Answer 3

(1) Subsequent marriage
(2) Divorce/annulment
(2) Pretermitted child statutes

Question 4

What is the effect of marriage following the execution of a will?

Answer 4

Most states: marriage following the execution of a will has no effect on the earlier will
Some states/UPC: The new spouse will take an intestate share as an omitted spouse unless (1) the will makes a provision for the new spouse, (2) the omission was intentional, or (3) the will was made in contemplation of the marriage

Question 5

What is the effect of divorce or annulment following the execution of the will?

Answer 5

Most states: The divorce/annulment following the execution of a will revokes all gifts and fiduciary appointments made in favor of the former spouse. The will is read as if the ex-spouse predeceased the testator.

UPC: Extends the rule to any provisions made in favor of the former spouse’s relatives.

None of this affects insurance policies

Question 6

What is the effect of a pretermitted child statute?

Answer 6

Most states have them. If the testator fails to provide in his will for any child born or adopted after the execution of the will, the child will take an intestate share, usually coming out of the residue

Question 7

How is a will revoked by subsequent instrument?

Answer 7

All or part of a will may be revoked or altered by a subsequent instrument executed with the same formalities as a will.

Question 8

What happens when a subsequent instrument does not expressly revoke the will?

Answer 8

The two will be read together and the later instrument will revoke the earlier one only to the extent that there are inconsistent provisions.

Question 9

How is a will (or codicil) revoked by physical act?

Answer 9

It usually may be revoked by burning, heating, obliterating or cancelling a material portion of the will with the concurrent intent to revoke. This may be done by another person at the testator’s direction and in his presence

Question 10

Does the accidental destruction of a will revoke it?

Answer 10

No

Question 11

Can a will be partially revoked by physical act?

Answer 11

Yes, usually. Extrinsic evidence may be admissible to determine partial vs. total.

Question 12

When, after the testator’s death, the will is missing or found mutilated, what presumptions are raised?

Answer 12

If the will was last seen in the testator’s possession or under their control: a rebuttable presumption that the they revoked it.

If the will was last seen in possession of a third person or if a person adversely affected by the will had access to it: no presumption of revocation.

Question 13

What is the effect of a revocation of a will on other testamentary instruments?

Answer 13

A revocation of a will revokes all codicils to it.

Question 14

What is the effect of revocation of a codicil on a will?

Answer 14

A revocation of a codicil does not revoke the will.

Question 15

How is a revocation of a will effective when there is a duplicate?

Answer 15

Where a will has been executed in duplicate, revocation may occur as to either copy to effectively revoke the will. But a revocation of a duplicate that is unexecuted will not revoke the will.

Question 16

When a will is lost or destroyed and the presumption that the testator revoked it is overcome, when may it be admitted to probate?

Answer 16

If the following can be proven:

(1) valid execution
(2) the cause of non production (proof that the will wasn’t revoked)
(3) the contents of the will (usually by witness testimony or a photocopy)

Question 17

May revoked wills be revived by revocation of the will that wholly revoked it?

Answer 17

Under the UPC and many states: If a will that wholly revoked a previous will is thereafter revoked, the previous will remains revoked unless it is evident that the testator intended to revive the previous will

Other states: it will only be revived unless re-executed

Other states: it will be automatically revived

Question 18

If a subsequent will partially revoked a first will is then itself revoked, what is the effect?

Answer 18

The revoked provisions will be revived unless it is evident that the testator did not intend to revive them

Question 19

What is the doctrine of dependent relative revocation?

Answer 19

It applies when a testator revokes their will under the mistaken belief that another disposition of their property would be effective and but for that mistaken belief would not have revoked. If the other disposition fails, the revocation will also fail and the will will remain in force. This occurs if the application of the will is more in line with the testator’s intent than an intestate distribution.

Question 20

Does the UPC harmless error statute apply to attempted will revocations or alterations?

Answer 20

Yes, the proponent must establish by clear and convincing evidence that the decedent intended it to be a revocation or alteration.