Week 8 Flashcards
What must be behind revocation?
What about this and 6124? (3)
has to be an accompanying intent to revoke a will
presumption that testator destroyed the will with intent to revoke it if:
- the testator’s will was last in the testator’s possession,
- the testator was competent until death, and
- neither the will nor a duplicate original of the will can be found after the testator’s death
If you write will B to revoke will A, but will B fails, such that the will can no longer be permitted to probate, what does DRR say?
If the testator knew that, they wouldn’t have wanted Will B to revoke Will A, and Will A remains
What is DRR?
Doctrine of Dependent Relative Revocation
What happens in LaCroix v. Senecal?
Executes Will B to revoke Will A, but Will B isn’t good. Will A is found not to have been revoked;
easy case of applying DRR
Where a testator executes a codicil to revoke a prior will, the revocation is dependent upon the validity of the codicil if the codicil only clarifies the relationship of a beneficiary to the testator.
The only change the testator made in the codicil to her prior will is that she referred to nephew by the name in the will and also an additional name by which he was also known.
Suppose clause 5 of T’s typewritten will provides: “I bequeath the sum of $1,000 to my nephew, Charles Blake.” T crosses out the “$1,000” and substitutes “$1,500” — a larger bequest. T then writes her initials and the date in the right-hand margin opposite this entry. After T’s death some years later, her will is admitted to probate. Blake contends that he is entitled to $1,500 or, in the alternative, $1,000.
What result in CA? (2)
Fails as a holographic will, because 1500 is not a dispositive provision, even if it’s in his handwriting (dispositive provision would have to be in his handwriting)
Fails 6110(c)(2) because does not incorporate by reference dispositive provisions.
Suppose clause 5 of T’s typewritten will provides: “I bequeath the sum of $1,000 to my nephew, Charles Blake.” T crosses out the “$1,000” and substitutes “$1,500” — a larger bequest. T then writes her initials and the date in the right-hand margin opposite this entry. After T’s death some years later, her will is admitted to probate. Blake contends that he is entitled to $1,500 or, in the alternative, $1,000. What result if, in addition, two witnesses observed the testator’s modifications and then signed the will?
6110(c)(2)? No; still don’t know who it’s going to; No explicit incorporation by reference
Do attested wills need to be typed?
No; they can be handwritten too
Suppose clause 5 of T’s typewritten will provides: “I bequeath the sum of $1,000 to my nephew, Charles Blake.” T crosses out the “$1,000” and substitutes “$1,500” — a larger bequest. T then writes her initials and the date in the right-hand margin opposite this entry. After T’s death some years later, her will is admitted to probate. Blake contends that he is entitled to $1,500 or, in the alternative, $1,000. What if he wrote “$1,500 to my nephew, CB”?
Then it’s OK; it’s a holographic codicil; dispositive provision in testator’s handwriting, with signature
Suppose clause 5 of T’s typewritten will provides: “I bequeath the sum of $1,000 to my nephew, Charles Blake.” T crosses out the “$1,000” and substitutes “$1,500” — a larger bequest. T then writes her initials and the date in the right-hand margin opposite this entry. After T’s death some years later, her will is admitted to probate. Blake contends that he is entitled to $1,500 or, in the alternative, $1,000.
What’s the argument for giving CB nothing?
Argument against that argument? (2)
He crossed it out validly as a cancellation; so what if the other part wasn’t valid
- DRR: Was crossed out with the assumption that 1,500 would be given, but wasn’t, so no effective revocation;
- DRR: Intent to increase; no intent to decrease
Suppose clause 5 of T’s typewritten will provides: “I bequeath the sum of $1,000 to my nephew, Charles Blake.” T crosses out the “$1,000” and substitutes “$500” — a smaller bequest. T then writes her initials and the date in the right-hand margin opposite this entry. After T’s death some years later, her will is admitted to probate.
Honor the revocation? (2)
No dispositive provision in testator’s handwriting, so no $500, but 0 or 1000?
It’s a fact-finding mission; no legal answer; talk about the testator’s intent
In his typewritten will, which contains a legacy of $5,000 to “John Boone,” T crosses out “John” and writes in “Nancy.” In nearly all states, Nancy cannot take because the gift to her is not attested.
In a state permitting partial revocation by physical act, should the legacy to John be given effect under DRR?
$5,000 to “Boone” or to “John Boone”
6111.5 says use extrinsic evidence to resolve ambiguities: what does Boone mean? Then use “Nancy” as extrinsic evidence to interpret Boone.
When does DRR apply? (2)
With rare exceptions, courts have held that DRR applies only
- where there is an alternative plan of disposition that fails, or
- where the mistake is recited in the terms of the revoking instrument or, possibly, is established by clear and convincing evidence.
Preparing to make a new will, T writes “VOID” across her duly executed will. Several days later she shows the defaced will to her lawyer and instructs the lawyer to prepare a new will. The lawyer prepares a draft of the new will, but when it is shown to T, T tells the lawyer that it wrongly describes some property and is wrong in some other ways and must be changed. Before the draft can be corrected and executed, T dies. The lawyer testifies who the beneficiaries were to be under the new will.
Does DRR apply so as to cancel the revocation of the earlier will?
What if she revoked it 10 years before she died?
Hard to say, but if it was 10 years ago, then looks like she didn’t plan for a new will; DRR wouldn’t be an option here
T’s will bequeaths $5,000 to his old friend, Judy, and the residue of his estate to his brother, Mark. T later executes a codicil as follows: “I revoke the legacy to Judy, since she is dead.” In fact, Judy is still living and survives T.
What’s the result?
DRR is applied; legacy goes to Judy; mistake of fact
Are all mistakes of fact evidence that DRR should be applied?
Why?
No; e.g., Suppose that the codicil had read: “I revoke the legacy to Judy, since I have already given her $5,000.” In fact, the testator did not give Judy $5,000 during life.
