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
key takeaway from alburn
testator executed a will in 1955. in 1959 she executed a new will, intending to revoke the 1955 will. she died a few days later.
at the time the state followed the minority approach of no revival without re-exectuion rule
So does she have to go into intestacy?
nope, drr applies
what are three life circumstances that may happen between execution of a will and the testator’s deatj that may render the will stale or obsolete
divorce, marriage, birth of children
explain revocation upon divorce
Statues in nearly all states provide that a divorce presumptively revokes a provision in a decedent’s will for the decedent’s divorced spouse
Based on the inference of intent to revoke a will (ie its a presumption so it can be rebutted via express terms in the will )
The gifts described in a will that give property to surviving spouse are REVOKED UPON DIVORCE
what happens to a premarital will upon marriage
a premarital will remains valid in spite of a subsequent marriage, but a surviving spouse who the decdent spouse married after executing his will can take an intestate share, unless the will indicates otherwise
what are pretermitted child statues
gives a child born after the execution of a parent’s will, and not mentioned in the will, a share in the parent’s estate.
what is the doctrine of integration
all papers that are present at the time of execution and are intended to be part of the will are treated as part of the will
key takeaway from rigsby
The purported will was found by the surviving spouse, folded together in a ledger, but not otherwise fastened to each other
Both pages are written in the hand of the decedent
One page was signed at the bottom of the writing, leaving about two and a half inches below it blank
The parties agree that this page expresses testamentary intent
The second page, just like the other, is not numbered and does not refer to the first in any way
Its a simple list of personal property, with each item followed by the name of an individual
Although this page is initialed at the top, its not signed
Do the two pages together constitute a valid holographic testamentary disposition of decedent’s property
The first page = holographic will
Handwriting is hers
Signed
Expression of conditionally upon death
second page - no will
handwritten? yes
Signature? kinda
express gifts conditioned upon death? no! just a list of stuff!
the two are not to be read together; she knew how to create testamentary lang in the first doc, and she didn’t do it in the second
Where the instrument offered consists of more than one sheet of paper, what is needed
it must be
made clearly apparent the testator intended that together they should constitute the
last will and testament of the testator
ie connected with a staple, numbered, connection of lang carrying over from one page to anotehr
what is the doctrine of republication by codicil
A validly executed will is treated as re-executed (ie republished) as of the date of the codicil
A will is treated as if it were executed when its most recent codicil was executed, whether or not the codicil expressly republishes the prior will, unless the effect of so treating it would be inconsistent with the testator’s intent
what is incorporation by reference
allows for a writing that was in existence but not present at the time of execution and that was not itself executed with testamentary formalities to be ABSORBED into the testator’s will
A writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification
is a codicil something that can come in as incorporation by reference?
No! Incorporation by reference is a scenario where a doc is in existence at time of execution but its somewhere else
codils are written after
codicil v integration
Codicil = time goes on and executes a new document that is SUPPLEMENTAL
Integration = at the time of execution
why is incorporation by reference not the same thing as integration
Because integration requires presence together at time of execution
Incorporation by reference is a scenario where a doc is in existence at time of execution but its somewhere else
take away from clark (the painting picture)
1972 – Memorandum drafted. No mention of painting
1976 – memorandum modified. No mention of paining
1977 – will executed; tangibles distributed as ‘designated by a memorandum”
1979 – notebook notations made
jan/feb 1980 – promise to give clark the painting
May 1980 – codicil one executed
Oct 1980 – codicil two executed
1986 - testator dies
Dispute about the painting which is referenced in the memo (but outside the four corners of the will
Via the extrinsic evidence, decedent wants to give painting to the friend
We know this BUT – the magic question is, did she do what she needed to do to effectuate that intent?
executor argues that The notebook should not be considered a memorandum within the meaning of the article because it is not specifically identified as a memorandum
Court considers it INCORPORATED into the will (ie the notebook)
A will may incorporate by reference any informal document not executed in the manner of a will that was in existence at the time of execution of the will, or a codicil to the will, and is shown by adequate proof to be the document referenced in the will.
when the court in clark said “it appears clear that Helen intended by the language used in article fifth of her will to retain the right to alter and amend the bequests of tangible personal property in her will, without having to amend formally the will”
but glover said they were wrong – why?
hint – something to do about the codicil
no one in the case talked about the fact that the writing was not in existence at the time of the execution!
1980: codicil executed, NO MENTION OF MEMO OR NOTEBOOK (no intent to incorporate!!)
But the notebook WAS in existence at time of CODICIL
Ie republication codicil
At the time she executed codicil 2, then the 1977 will becomes executed in 1980 via codicil
MEANING: she changed the estate planning FORMALLY; not informally like the court said!
what is a personal property memoranda?
when must it be written?
how is it limited?
Ex: “I give all my tangible personal property to the persons named in a written memorandum which I may leave at my death”
the UPC allows a testator to dispose of tangible personal property by a separate writing, even if prepared after the execution of the testator’s will, provided that the will makes reference to the separate writing
Before or AFTER execution of will
Limited what you can do though - TANGIBLE PERSONAL PROPERTY
what is needed for valid intergation
exsistence at will execution, presence at will execuion, and must be in writing
but doesnt need to be refrenced in the will
what is needed for vaild incorporation by reference
exsistence at will execution, refrence in the will, and must be in writing
but does not need to be at will execution
what is needed for valid personal property memo
reference in will, in writing, and a signature
what is needed for a valid codicil
in writing, signature, attestation
what are acts of independent significance
permits the use of facts and circumstaces outside the four corners of the will to impact the property disposition of the testator – these acts have testamentary effect
The testator might do things after execution that changes disposition of property
