will formalities-- revocation of wills and integration Flashcards
can a will be revokable?
yes! You’re not locked into a will; you can rework/destroy it up until death
what is express revocation
“i, Jordan Green, a resident of Irmo, South Carolina, make this my will and REVOKE all prior wills and codicils”
what is implied revocation
A writing executed with the wills act formalities may also revoke a prior will in whole or in part by inconsistency
how is a residuary clause an implied revocation?
Disposes of everything not already disposed of
does destructionn of a will automatically revoke the will
it can but its not needed; if you are trying to revoke in this way, You also need the intent to revoke paired with the action
how does a codicil work to implcilty revoke a will
the later codicil supeceds the earlier will to the extent of inconsistnecy between them
what is the presumptiom when a codicil is revoked
When a testator revokes a CODICIL, the presumption is thatt it has no impact on the og will,
what happens when a will is made, a codicil to that will is made, but then the will is revoked?
The codicil just builds upon the will so if no will, then what purpose would codicil serve
All codicils are revoked as well
what is the key takeaway from Thompson v royall (formalllity in revocation by writing or physical act)
Sept 4 1932 – kroll signs a will before three attesting witness
Sept 15 1932 – kroll signs a codicil before two attesting witnesses
Sept 19 1932 – kroll wants to destroy will and codicil, but lawyer convinces her to keep them. He writes “null and void” on the manuscript cover of the will and the back of the codicil. She signs before two witnesses who did NOT SIGN
Did she do what she needed to do to effectuate her intent to revoke?
Court says no
The notations are not a subsequent writing we can look at!
We don’t have two witness signing and they are not in her handwriting
Also according the statute in this jurisdiction the writing has to physically touch the words
does the upc require the sub writing to touch the words like the tompson case
no
what is the key takeaway from harrison (presumption of physical act revocation)
Nov 1989 – Speer executes duplicate wills naming K. Harrison as the primary beneficiary
March 1991 – Speer instructs her attorney by phone to revoke her will. The attorney tears the will into pieces and sends a letter to Speer stating that the will is revoked
Sept 1991 – speer dies and destroyed will not found
ISSUE
Was the will revoked?
The lawyer’s action did not revoke the will because lack of her presence !
it was revoked because we could not find her will – ie presumption of revocation
what is needed for a will to be revoked via physcial act by someone other than the testaor
All revocation statutes allow physical revocation by someone else, BUT it must be at direction of testator AND in their presence
what is the presumoption if we cant find the will?
the law presumes that the will cant be found because the testoart destoyoyed or mutilated it with the intent to revoke it
this presumption of revocation is REBUTTABLE and the burden of rebutting the presumption is on the proponent of the will
what is the take away from stoker (harmless error in revocation)
The decedent’s ex tries to enter the og will into probate but he had executed a new document, handwritten not in his handwriting
ISSUE
Was the handwritten note enough to revoke the prior will?
Question is not if he wants to change his mind, its did he do what he needed to do to effectuate that change
yes via extrinsic evidnece of his testimenatary intent
Under what circumstances do you give everything away?
When you die!
“Everything” is a strong inference that you are reflecting death
can a physcial destroying/burning of a copy of a will revoke the will
If youre gonna do a physical revocation, it cant be on a copy, must be on the one you actually signed
does harmless error apply to revocation by physcial acts?
nope, you either do it or you dont
what is a partial reovcation by physical act (authorized by the UPC)
revocation that doesnt revoke the entirty of the will but it can only be done by a subsequent writing
what is dependent relative revocation (DRR)
If a testator undertakes to revoke her will upon a MISTAKEN ASSUMPTION of law or fact, under this doctrine, the revocation is ineffective if the testator would not have revoked the will but for the mistaken belief
The testator’s mistake negates her revocatory intent
Very limited applicability
what is the typical dependent relative revocation case
involves a testator who revokes a prior will under a belief that a new will is valid, but in fact the new will is invalid
what is the key takeaway from LaCroix (dependent relative revocation)
Celestine L. Dupre executed a will in 1951, leaving half of her estate to her nephew Nelson Lamoth and the other half to Aurea Senecal.
She later executed a codicil to more accurately identify her nephew, (attempt to resolve any potential ambiguity) but the codicil was invalid because Senecal’s husband was a witness (ie purging statute triggered)
Dupre’s niece, Fabiola LaCroix, contested the will, leading to the case being heard by the Connecticut Supreme Court.
Was she intending to revoke the og residuary clause
No; it was to remove and replace, but the replacement failed to carry out her actual intent
Under the doctrine of dependent relative revocation, if a testator revokes all or part of her will intending the revocation to be effective only if a subsequent will or codicil can be validly substituted, and the subsequent will or codicil is actually not valid, then the revocation fails to the extent that the condition on which it was based was not met.
see the drr probs on page 242/e and e probs
what is the doctrine of revival
governs the reienstatent of a previously revoked will
the previous will is revivied if it its evident from the circumstances of the revocation of the subsequent will or from the teststaor’s declarations that they intnded the previous will to take effect as exected
what is the majority and minority approach to revival
A majority of states hold that upon revocation of will 2, will 1 is revived if the testator so intends
A minority of states take the view that a revoked will cant be revived unless re-executed with testamentary formalities