Revocation & Revival Flashcards
Revocation, generally
A will or codicil may be revoked in whole, or in part, any time prior to death of the testator by a subsequent writing, physical destruction, or by operation of law. Oral revocations are not valid.
Subsequent Instrument - Inconsistencies
If there are inconsistencies between the prior will or codicil and the subsequent will or codicil, the later document controls and revokes the prior inconsistencies.
Subsequent Instrument - Express v. Implied Revocation
The revocation can be express (the new will or codicil expressly statesthat it is revoking the prior will or codicil) or can be implied (the terms of the new will or codicil conflict with the terms of the prior will or codicil) by the terms of the subsequent instrument.
Physical Destruction
A will or codicil may be partially or completely revoked by destroying a portion of the will or codicil with the simultaneous intent to revoke it.
Partial or whole defacement of the actual language of the will or codicil is required.
A third party can revoke through physical destruction of the will or codicil on behalf of the testator if it is requested by testator and destroyed in testator’s presence.
Destruction of a signed original or duplicate original presumptively destroys all copies.
Revocation by Operation of Law - Divorce of Dissolution
Divorce or dissolution of a domestic partnership automatically revokes all will provisions in favor of the former spouse or domestic partner unless it can be shown that testator intended for the will provisions to survive the divorce or dissolution. Separation does not revoke the will provisions.
Revocation of Codicil
A valid codicil alters, amends, or modifies the original will. If the testator revokes the codicil, the original will terms will be revived and the original will terms will be followed.
Revival - Republication
Revocation of a later will or codicil that revokes the original will revives the original will if there is proof that the testator intended to revive the original will. If the later will or codicil is revoked by physical act, extrinsic evidence of testator’s intent to revive the original will is admissible.
Revival - Dependent Relative Revocation (DRR)
The doctrine of Dependent Relative Revocation (DRR) will allow a court to revive a revoked will when the testator revoked the will by subsequent instrument or physical act under a mistaken belief of law or fact. It must be shown that the testator would not have revoked the original will but for the mistaken belief.
