Revocation of Wills: In General; Subsequent Writing; Physical Act

Question 1

When may a will be revoked?

Answer 1

At any time prior to testator’s death, as long as testator has testamentary capacity

Question 2

In general, what are the three ways a will be revoked ?

Answer 2

1. subsequent instrument
2. Physical Act
3. Operation of law

Question 3

What are the two manners of revocation by “subsequent instrument”?

Answer 3

1. Express Revocation

2. Implied Revocation

Question 4

What is an express revocation?

Answer 4

Rule –> a will may be EXPRESSLY revoked by a later will or codicil executed with the formalities required for a valid will

NOTE –> An attested will may be revoked by a holographic will and vice versa

Question 5

What is an implied revocation?

Answer 5

Rule –> a will may be revoked by IMPLICATION from the terms of a subsequent instrument.

To the extent the second will makes an INCONSISTENT DISPOSITION of property, the terms of the prior will are necessarily nullified.

NOTE –> if there is only a PARTIAL INCONSISTENCY, and both wills are admitted to probate, the mention of a child in EITHER will is sufficient for child to claim pretermitted heir

Question 6

What is the rule w regards to revocation by physical act?

Answer 6

General rule –> Will may be FULLY or PARTIALLY revoked by:

1. BURNING, TEARING, CANCELLATION;
2. with SIMULTANEOUS intent to revoke

Question 7

What is the rule if physical destruction of will is done by someone other than testator?

Answer 7

In this case, destruction must take place in the presence of testator AND at their direction

Question 8

With regards to revocation by physical act and burning, what is required?

Answer 8

slighting singeing is sufficient.

Burn NEED NOT touch material part

Question 9

With regards to revocation by physical act and tearing, what is required?

Answer 9

Most courts require tearing to touch some material part of the paper

Question 10

With regards to revocation by physical act and obliteration, what is required?

Answer 10

Obliteration must be of some material part

Question 11

With regards to revocation by physical act and cancellation, what is required?

Answer 11

Cancellation means drawing lines through WORDS of the will.

NOT Sufficient –> writing “Void” in the margin

Question 12

With regards to revocation by physical act what is the effect of defacing the signature?

Answer 12

Defacing the signature revokes the entire will UNLESS there was no intent to revoke

Question 13

With regards to revocation by physical act, what is the rule with regards to the requirement of concurrent intent?

Answer 13

Intent to revoke must be CONCURRENT with physical act

NOTE –> if T destroys with intent to revoke, a change of mind AFTERWARDS does NOT reinstate the will

NOTE –> if T forms intent to revoke AFTER accidentally destroying the will, the will is NOT revoked.

Question 14

What is the presumption if the will is not found at death?

Answer 14

Will is PRESUMED revoked (via physical destruction) if:

1. T was competent until death
2. will was last known to be in T’s possession
3. neither WILL nor duplicate is found in T’s possession

Question 15

May T INCREASE a gift to a beneficiary by physical act?

does this rule apply only to cancellation?

Answer 15

T CANNOT increase a gift to a beneficiary by cancelling words in a will (although this can increase residuary).

T can only DECREASE a gift by this method

Question 16

When can a lost or destroyed will be admitted to probate?

Answer 16

If will is LOST or DESTROYED without being revoked, the will is admissible to probate on adequate proof of its contents in the absence of any statute to the contrary

SOME STATES –> have laws preventing or limiting probate of lost or destroyed wills.

Question 17

What is the effect of physical destruction of one of two executed duplicate copies of will?

Answer 17

valid revocation

Question 18

Does physical destruction of a codicil revoke will?

If they are on same paper?

If they are on different paper?

Answer 18

If they are on same paper:

• Destruction of will –> also revokes codicil
• Destruction of Codicil –> will revoke will ONLY if T so intends

If they are on separate paper:

• Destruction of will –> revokes ALL codicils unless T does not so intend
• Destruction of Codicil –> will not destroy will, even if T so intends