VI. REVOCATION OF WILLS; VII. PROBLEMS ASSOCIATED WITH TESTAMENTARY GIFTS Flashcards
A will can be revoked
(1) by a subsequent testamentary instrument that expressly revokes earlier wills, or
(2) by physical act (“by the testator destroying or canceling the will, or [Feb. 2003] causing it to be done in his presence”—proxy revocation). A holographic instrument can revoke a typewritten, attested will (and vice versa).
A. PRESUMPTIONS AS TO REVOCATION
[Feb. 1993, July 1995] Where will last seen in T’s possession or control is not found after death,
Where will last seen in testator’s possession or control is found in torn or mutilated condition,
These presumptions do not arise if
presumption: T destroyed will by physical act with intent to revoke.
presumption: T revoked the will by physical act.
(1) [July 2010] will last seen in the possession of someone adversely affected by its contents. (2) Evidence is admissible to rebut the presumption of revocation where will cannot be found or is found in damaged condition. (E.g., will destroyed in fire that killed testator.)
**
B. proof of lost wills
31. A xerox copy of Tina’s will (showing Tina’s and witnesses’ signatures) is found in Tina’s safe deposit box after her death; the original can’t be located. Can the xerox copy be probated as a lost will?
[July 2010]
To probate a lost will, three-point test:
1, due execution must be proved as in any other case.
**2, cause of will’s non-production must be proved. (Must overcome presumption of revocation raised by will’s nonproduction)
3, contents must be substantially proved by one who has read will, heard it read, or can identify copy of will.
C. RULES GOVERNING CHANGES MADE ON FACE OF EXECUTED WILL
32. [Feb. 1997] Elsie’s duly executed typewritten will makes a number of legacies, including:
“10. I give the sum of $5,000 to my nephew, Hobie Gates.”
“11. I give the sum of $2,000 to my niece, Susan Slade.”
Elsie decides to make some revisions without the assistance of an attorney. Using a felt tip pen, Elsie crosses out clause 10 in its entirety and strikes “$2,000” in clause 11. Using a ball point pen, Elsie writes in “$5,000” above the crossed-out $2,000, and initials and dates the margin. Elsie dies three years later; what is the effect of these changes on the will?
Does Susan take the $5,000?
Suppose Elsie had written, at the bottom of the page, “I want Susan to take $5,000 rather than $2,000 in paragraph 11. E.B.” Would this be a valid holographic codicil to the will?
can’t we consider the written-in “$5,000, E.B. 4/11/87” as a holographic codicil?
Was the gift to Hobie in clause 10 validly revoked when Elsie crossed it out with a felt tip pen?
no effect at all;
no; Words added to a will after the will has been executed:
are disregarded because they are not part of the duly executed will
only when signed constitute the real will
valid;
wholy by handwriting and signed by her
no; means nothing without context which is typre written, its not a complete thought
no; Partial revocation by physical act:
not valid in TX, can revoke entirely but not partially
- [Feb. 1997] Elsie’s duly executed typewritten will makes a number of legacies, including:
“10. I give the sum of $5,000 to my nephew, Hobie Gates.”
“11. I give the sum of $2,000 to my niece, Susan Slade.”
Elsie decides to make some revisions without the assistance of an attorney. Using a felt tip pen, Elsie crosses out clause 10 in its entirety and strikes “$2,000” in clause 11. Using a ball point pen, Elsie writes in “$5,000” above the crossed-out $2,000, and initials and dates the margin. Elsie dies three years later; what is the effect of these changes on the will?
to change will she?
32a, Same facts as above, except that the will was a holograph, entirely in Elsie’s handwriting.
Are the crossouts and interlineations valid?
bottom line: read will as originally written, anything thereafter invalid
in TX, to change will she must write a new will or a valid codicil
unless 32a
yes; if evidentiary test is met. two person testify thats wholy in his written
- 2002 T executes my last will, 2006 T executes my last will, 2006 will does not contain language of revocation of any earlier will.
[July 1992] You read the two instruments together. The second “last will” is treated as a codicil to the first, and revokes the first will only to the extent of inconsistent provisions.
BUT [July 2004] if second instrument is wholly inconsistent with the first (e.g., first will gives “all my property to Alice” and second gives “all my property to Betty”), the first will is revoked by implication.
B. SPECIFICALLY DEVISED PROPERTY NOT IN ESTATE AT DEATH— ADEMPTION
- [July 2002; ten times since 1986!] Ted’s will provides: “I devise Blackacre to my son John, and all the rest, residue of my property to my daughter Mary.” Two months before his death, Ted sells Blackacre for $10,000 cash and a $90,000 note secured by a mortgage. On Ted’s death, what does John get?
a. Same facts (Ted sells Blackacre shortly before his death), except that the will provided: “I devise all of my interest in Blackacre to my son John.”
________ Does ademption apply to this gift, meaning that John takes nothing?
John takes 0; ademption becasue if owns no property then cant pass it on
no; the interest is the note in the mortgage; but not the 10k
- [July 2003] Ted’s will also provided: “I give the sum of $25,000, to be paid out of the proceeds of sale of my Exxon stock, to my sister Sally.” (A demonstrative legacy.) One year before his death, Ted sells his Exxon stock and uses the sale proceeds to buy Motorola stock.
________ Does ademption apply to demonstrative (or general) legacies?
On Ted’s death, what does Sally get?
no; only to specific gifts
25k, other assets must be sold if needed
- Tracy’s will bequeaths his two-year-old Toyota to his son John, and devises his residuary estate to his wife Wanda. Tracy is killed in an accident in which the Toyota is demolished. After Tracy’s death the insurance company pays Tracy’s executor $12,000 on Tracy’s auto insurance policy. Does John get the $12,000?
no; because Texas applies the common-law “identity” doctrine, under which ademption is applied as an objective test; testator’s probable intent is irrelevant.
get the salvage value only
wanda gets the 12k by residuary clause
- [Four times since 1984] In 2004, Tony executes a will that devises Blackacre to Ann, and his residuary estate to Carl. On Tony’s death in 2013, Blackacre is subject to a mortgage securing a $35,000 note on which Tony was personally liable. Ann demands that Tony’s executor pay the $35,000 debt out of the residuary estate so that she will take title free of the mortgage lien.
________ Must the executor pay the debt?
yes
For wills executed before September 1, 2005, absent contrary will provision liens on specifically devised property are:
EXONERATED from residuary estate
residuary estate takes the hit
the date was signed not the one died
Bottom line for will executed on or after 9/1/2005: Ann is no better off than Tony was; Ann takes exactly what Tony owned: Title subject to a mortgage lien.
(And watch for a will executed before 2005, followed by a codicil after 9/1/2005, and doctrine of republication by codicil, no EXONERATED)
