Revocation of Wills

Question 1

Manner

Answer 1

1. by subsequent testamentary instrument that expressly revokes earlier wills; or
2. by physical act with intent to revoke (destroying or proxy destroying)

Question 2

Presumptions as to Revocation

Answer 2

Revocation presumption when:

(i) when will was last seen in T’s possession or control and is not found after death
(ii) will last seen in testator’s possession and is found torn or mutilated

Even if lost will cannot be probated because contents cannot be established, proof that will existed and had a revocation clause can be shown to revoke a prior will.

Question 3

Revival of Revoked Wills

Answer 3

Once will is revoked by later will, it cannot be revived unless:

(a) re-executed with proper formalities; or
(b) republished by a duly executed codicil

Question 4

Republication by Codicil

Answer 4

will is deemed to have been executed on date of last codocil

So if codocil is after pretermitted child is born (or gestation principle), then it is not pretermitted child.

Question 5

Dependent Relative Revocation

Answer 5

when will is revoked because of mistaken belief that earlier will would be revived, DRR permits the court to disregard the revocation

Question 6

Proof of Lost Wills

Answer 6

To probate lost will, must prove:

1. due execution like any other case;
2. cause of will’s non-production must be proved (to overcome presumption of revocation raised by will’s non-production); and
3. contents must be substantially proved by one who has read will, heard it read, or can identify a copy of it.

if 1 and 2 met, but not 3, can still prove revocation of past will

Question 7

Changes Made on Face of Executed Will

Answer 7

Words added to a will after the will has been executed are not valid, unless they are a holographic codocil.

Partial revocation by physical act (e.g. crossing out with a pen) not valid in TX unless ??? see q 32a

(added words must be complete in themselves)

Question 8

Examples of rebutal of presumption of revocation

Answer 8

Presumption of revocation where will last seen in testator’s possession could not be found after death
Presumption rebutted on facts—accidental destruction

[2] Presumption of revocation rebutted where will last seen in possession of one adversely affected by it

No partial revocation by physical act; cross-out of bequest ignored