Revocations

Question 1

What is the overview for revocation?

Answer 1

• general rule
• revocation by physical act
• revocation by operation of law
• by subsequently executed instrument
• by ademption
• by advancement

Question 2

What is revocation by physical act?

Answer 2

gen rule = any testator w/ capacity may modify/revoke his/her will anytime prior to his/her death

Elements

(1) physical act
- destroying
- burning
- tearing
- obliterating
- cancelling - by testator/another in testator’s presence AND simultaneous intent to revoke

Duplicate Original Wills = revoked as matter of law

Other Presumptions
• misplaced will = rebuttable presumption that revoked
• mutilated will = rebuttable presumption that revoked

Question 3

What is the presumption for a misplaced will?

Answer 3

rebuttable presumption that revoked

Question 4

What is the presumption for a mutilated will?

Answer 4

rebuttable presumption that revoked

Question 5

What happens with duplicate original wills?

Answer 5

revoked as a matter of law

Question 6

What is cancelling to constitute a revocation by physical act?

Answer 6

cancelling

• by testator/another in testator’s presence; and
• simultaneous intent to revoke

Question 7

What is revocation by operation of law?

Answer 7

1. Omitted/pretermitted child
2. Omitted spouse
3. By divorce/dissolution of marriage/d.p.

Question 8

Omitted/Pretermitted Child

Answer 8

definition = a child born/adopted after all testamentary instruments have been executed and the child is not provided for in any of the instruments

effect = revocation by operation of law & intestate share

exceptions
• omission intentional
• child provided for outside of instrument
• all/substantially all of estate to parent of omitted child

Question 9

What is the effect of an omitted/pretermitted child?

Answer 9

revocation by operation of law and intestate share

Question 10

What are the exceptions for omitted/pretermitted child?

Answer 10

Effect = revocation by operation of law & intestate share

Exceptions
• omission intentional
• child provided for outside of instrument
• all/substantially all of estate to parent of omitted child

Question 11

Omitted Spouse

Answer 11

definition = a surviving spouse who married the testator after all testamentary instruments have been executed and the spouse is not provided for in any of the instruments

Effect = revocation by operation of law and statutory share

Statutory Share =
• 1/2 of CP and QCP; and
• intestate share of decedent’s SP (limited to a maximum of 50% of the SP in the decedent’s estate)

Exceptions
• omission intentional
• spouse provided for outside of instrument
• valid waiver by omitted spouse
- in writing
- signed before/during marriage

Question 12

What is the effect of omitted spouse?

Answer 12

Effect = revocation by operation of law and statutory share

Statutory Share =
• 1/2 of CP and QCP; and
• intestate share of decedent’s SP (limited to a maximum of 50% of the SP in the decedent’s estate)

Question 13

What are the exceptions to the omitted spouse?

Answer 13

Exceptions
• omission intentional
• spouse provided for outside of instrument
• valid waiver by omitted spouse
- in writing
- signed before/during marriage

Question 14

Omitted Domestic Partners

Answer 14

omitted spouse rules apply

Domestic Partners =
- partners of same sex
OR
- opposite sex & one person > 62 years; AND filed declaration of domestic partnership w/ sec’y of state

Question 15

By Divorce or Dissolution of Marriage/DP

Answer 15

Device to former spouse = revoked by operation of law - unless the will expressly states otherwise

• legal separation ≠ sufficient for revocation

Remarriage to former spouse = devise reinstated - unless the will has been changed

Question 16

By Subsequently Executed Instrument

Answer 16

(1) Express Revocation = testator validly executes new will/codicil

(2) Implied Revocation = testator validly executed subsequent inconsistent instrument
• entire revocation = 2nd will entirely disposes of testator’s estate
• partial revocation = to the extent of any partial inconsistencies

(3) Revival
• 2nd will revoked by PHYSICAL ACT = extrinsic evidence admissible
- where will 2 is revoked by physical act, extrinsic evidence is admissible to prove the testator intended to revive will 1
• 2nd will revoked by SUBSEQUENT INSTRUMENT = NO extrinsic evidence
- where will 2 is revoked by subsequent instrument, will 1 is not revived unless it appears from the terms of will 3 that the testator intended will 1 to be revived

Question 17

Ademption by Extinction

Answer 17

• specific devises only

• specifically described devise no longer owned by testator at death
• CL: identity theory = gift extinguished
• CA Law: Intent Theory - devisee may be entitled to cash value, if he/she can show it is what the testator would have wanted

  * CA presumptions of no ademption by extinction

• investment securities change form
• sale of asset by conservator
• proceeds after testator’s death

Question 18

Ademption by Satisfaction

Answer 18

Definition = testator makes an inter vivos gift to the beneficiary with the intent that this gift replace/decrease the devise under the testamentary instrument

• mostly applies to general devises
• requirements

(1) inter vivos gift
(2) intent by testator
- will expressly provides for deduction
- expressed in contemporaneous writing by testator
- written acknoledgement by the beneficiary at anytime; or
- specific devise and inter vivos gift = specific property

Valuation
• expressed in contemporaneous writing by either testator/beneficiary; or
• Fair Market Value
- beneficiary predeceases testator - the issues of the beneficiary are treated as having received the satisfaction unless the testator intended otherwise (will/other contemporaneous writing)

Question 19

Ademption by Advancement

Answer 19

Definition = advance inter vivos payment made by an intestate to an heir is deducted from the heir’s intestate share if intent is expressed in a contemporaneous writing

Requirements

(1) inter vivos payment
(2) intent by intestate
- expressed in contemporaneous writing by intestate; or
- written acknowledgement by the heir at anytime

Valuation
• expressed in contemporaneous writing by either intestate/heir; or
• Fair Market Value

Heir Predeceases Intestate - the issues of the heir are NOT treated as having received the advancement unless the testator intended otherwise (contemporaneous writing)