Revocations Flashcards
What is the overview for revocation?
- general rule
- revocation by physical act
- revocation by operation of law
- by subsequently executed instrument
- by ademption
- by advancement
What is revocation by physical act?
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
What is the presumption for a misplaced will?
rebuttable presumption that revoked
What is the presumption for a mutilated will?
rebuttable presumption that revoked
What happens with duplicate original wills?
revoked as a matter of law
What is cancelling to constitute a revocation by physical act?
cancelling
- by testator/another in testator’s presence; and
- simultaneous intent to revoke
What is revocation by operation of law?
- Omitted/pretermitted child
- Omitted spouse
- By divorce/dissolution of marriage/d.p.
Omitted/Pretermitted Child
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
What is the effect of an omitted/pretermitted child?
revocation by operation of law and intestate share
What are the exceptions for omitted/pretermitted child?
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
Omitted Spouse
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
What is the effect of omitted spouse?
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)
What are the exceptions to the omitted spouse?
Exceptions • omission intentional • spouse provided for outside of instrument • valid waiver by omitted spouse - in writing - signed before/during marriage
Omitted Domestic Partners
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
By Divorce or Dissolution of Marriage/DP
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
By Subsequently Executed Instrument
(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
Ademption by Extinction
• 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
Ademption by Satisfaction
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)
Ademption by Advancement
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)
