Revoking and Reviving Wills; Lost Wills Flashcards
Revocation of a Valid Will
How and when can a testator revoke a valid will?
Atestator may revoke her will at any time before death.
1. By physical act
2. By new writing
Revocation of a Valid Will
How does a testator revoke a will by physical act?
By physically destroying it with the intent of revoking it.
* Any physical act is sufficient; the key is that the testator completely or even partially destroys the will through some physical act and that the testator does that with the present intent to revoke the will
* can also get someone else to destroy it for you
* Can make a partial revocation
* Courts want something that touches the words of the will
Revocation of a Valid Will
How does a testator revoke a will by new writing?
A new valid will (attested or holographic) or codicil that expressly revokes the older will and the codocils thereto. The revocation of the older will automatically revokes any codocils
Revocation of a Valid Will
How can a later will or codicil implicitly revoke an earilier will?
Inconsistency
Dependent Relative Revocation
What is this rule?
A rule under which a court cancels a revocation on the theory that the revocation was conditional on a second act that never took place. Basically, if the testator revoked all or party of a will and the evidence shows that the revocation was done in anticipation of a new will but that the testator never made a new will, the court can override the revocation
How do divorce and annulments affect a will?
A former spouse is treated as if he pre-deceased the testator.
Revival of a Will
First will expressly revoked by second will, and then second will revoked…
no revival of W1
Revival of a Will
W2 implcitly revoked W1 and then W2 is revoked…
W1 revived
Revival of a Will
If the revocation of the second will does not automatically revive the first will, the testator can still revive the first will by…
re-executing the first will or by executing a codicil to the first will
Revival of a Will
Provisions in a will that are revoked by divorce or annulment are revived if the parties…
re-marry before the testatoir executes a new will or codicil
Lost Wills
Ifadecedent had a will but the original cannot be found after the decedent’s death,…
there is a rebuttable presumption that the decedent destroyed the will with the intent to revoke it.
BoP on the proponent of the will’s existence
Lost Wills
What can replace the original will and rebut the presumption? What cannot? What can be used as evidence of will’s existence?
a duplicate orginal, NOT a photocopy, but a photocopy of the original will can be admitted as evidence of the testator’s intent, if all the original copies are lost. An attorney’s copy can also be evidence of the existence and terms of the will.
