Will Revocation

Question 1

Will Revocation

Answer 1

Testator may revoke a will at any time prior to death
- by subsequent instrument
- by physical act or
- by operation of law

Question 2

Will revocation by subsequent instrument

Answer 2

Revocation can take place by physical act or operation of law. A will may be revoked by the execution of a
new will or by some other physical act, such as cancellation or other writings on the will.

This must be done
with the intent to revoke the will. The testator or someone acting at the testator’s direction and in the
testator’s presence and by the testator’s direction may revoke the will. Revocation may also occur by
operation of law due to changed circumstances such as divorce or annulment of a marriage.

Question 3

Revocation by Physical Act

Answer 3

Physical destruction—burn, tear, obliterate, interlineate—with concurrent intent to revoke

1. T may direct another to destroy the will in his presence
2. If only part of will destroyed, EE admissible to show whether T intended part/full revocation
3. If there are copies, destruction with intent of either the original or a copy is a valid revocation

Question 4

Revocation by Operation of Law

Answer 4

Will may be revoked by oeratoin of law by:
- subsequent marriage
- Birth or adoption of children
- or dissolution or annulment of marriage

Question 5

Lost Will Rule

Answer 5

CA presumes that a will is known to be in T’s presence. If not found, CA presumes T revoked it

Question 6

Dependent relative Revocation

Answer 6

Cancels a revocation based on mistake of law or fact

i. If T revokes on the mistaken belief that another disposition would be effective, and but for this mistake T would not have revoked his will, the revocation is set aside, and the original will remains in force

ii. If revoked by subsequent instrument, EE not admissible to show the mistake

iii. If subsequent instrument is defective in the first place, revocation is also ineffective—DRR inapplicable

Question 7

Revival

Answer 7

If a testator wrote two wills and revokes the second one, revocation of the second will does not revive the earlier will unless it is evident that the testator intended the previous will to take effect as executed.

Revival by physical act: If the T revoked the second will by physical act, the will is not automatically revived, rather it’s revived only if T manifested intent to revive it.

Revival by subsequent instrument: If a T revokes the second will by subsequent act (eg a codicil) the first will is not automatically revived unless it appears from the terms of the subsequent will that the T intended to revive the will.