Validity of Wills-- Revocation of Wills

Question 1

revocation

Answer 1

valid revocation:
will can be revoked in one of two ways:

1) by a subsequent testamentary instrument (execute with proper formalities) OR
2) by physical act (e.g. burning, tearing, cutting, canceling , obliterating, or other act of mutilation) BUT must have the intent to revoke

Hypo: what if you write at the bottom of your will “This will is void”
No because it wasn’t properly witnessed by two people
No. It was not a physical act. It was not a cancellation. She could could have scratched out the signature, for example.

Question 2

Express revocation

Answer 2

Use explicit language in the will– “i hereby revoke all Wills heretofore made by me.”

Question 3

Revocation by implication, e.g. there are two wills: an earlier one and a later one with inconsistent devises

Answer 3

Rule: to the extent possible, you read the two instruments together. The second will is treated as a codicil to the first and only revokes the first to the extent of an inconsistent provision.

Question 4

Revocation by physical act of another (revocation by proxy)

Answer 4

Rule: the physical act must be:

a) at the testator’s request
b) in the testator’s presence; AND
c) witnessed by at least two witnesses

Therefore how many people must be in the room?
4—the testator
the persons witnessing the will,
the person destroying the will

Question 5

presumption regarding revocation of wills

Answer 5

when a will that was last seen in the testator’s possession or control is not found after death– presumption: T revoked the will with intent to revoke

when a will that was last seen in the testator’s possession or control is found in a damaged condition after T’s death (e.g. torn in two) presumption– T was the one that revoked the physical act.

Question 6

making a change to the will

Answer 6

RULE: the only 2 ways a testator can make changes in her will are:
a) write a new will that revokes the first will

b) make a codicil to the first will that changes parts of that will

BOTH must be duly executed

Question 7

No revival of revoked wills

Answer 7

if testator executes a will that is revoked by a later will containing revocation clause, the first will cannot be revived by testator merely revoking the later will:

a) re-execution–signed again by the testator and two witnesses
b) doctrine of “republication by codicil”: T validly executes a witness by codicil while making a change.

RULE: you need a validly executed document to make a change

Question 8

Dependent relative revocation (DRR)

Answer 8

DRR– permits revocation of a later will to be disregarded. the effect would be to permit probate of the later will

Question 9

How DRR works

Answer 9

1. Rule: DRR permits a revocation of a later will to be disregarded. The effect would be to permit probate of the later Will.
2. Note: DRR is a common law doctrine, sometimes called the second best solution doctrine
3. REQUIREMENTS FOR APPLICATION OF FRR:
   i. The testator’s revocation must be premised or dependent upon a mistake of law (i.e. the revocation of the later Will validates the prior will)
   ii. The disposition that results from disregarding the revocation of the later Will must come close to the dispositions the testator intended when he attempted to revive the earlier Will
   iii. NOTE: if given DRR question, argue both sides f

Question 10

4. LOST WILL STATUTE

Answer 10

Applies in 2 situations: DRR + Truly lost wills

b. lost will proponent must prove that:
a. the lost or later will was duly executed (7 pt test)
b. lost or later will was not revoked – lost will proponent must:
i. overcome the presumption of revocation that arises from the Will’s non-production; OR
ii. prove that the revocation should be disregarded under DRR

c. The Will’s Provisions are:
d. Clearly and distinctly proven by each of at least two credible witnesses, or by a copy or draft of the will proved to be true and complete