Will Revocation

Question 1

What are 2 ways that a Will can be revoked?

Answer 1

1) By subsequent TESTAMENTARY INSTRUMENT EXECUTED w/ ALL appropriate formalities (i.e. 7 points)

Express revocation= “I hereby revoke all Wills heretofore made by me”

Revocation of a will revokes ALL codicils thereto; HOWEVER, revocation of a codicildoes NOT revoke the entire will

Revocation by implication: if there is a 2d VALIDLY executed & w/o an EXPRESS revocation cl→read both instruments together (2nd Will = codicil); only revokes to the extent that there are INCONSISTENT prvns BUT, if the 2d will is WHOLLY inconsistent w/ the first→ the ENTIRE first will is revoked by implication

2) By PHYSICAL ACT (e.g. burning; tearing; cutting; canceling; obliteration; anything done to testator’s SIGNATURE;OR other act of mutilation), BUT must have the INTENT to revoke WHEN the physical act is taken

Physical act can be done by PROXY, IF (i) at the testator’s REQUEST; (ii) in the testator’s PRESENCE; AND (iii) witnessed by AT LEAST 2 witnesses
NOTE: at LEAST 4 ppl must be in the room: (i) the testator; (ii) the destroyer; AND (iii) 2 witnesses

Question 2

What are 2 key presumptions re: revocation of a Will by physical act?

Answer 2

When a Will was LAST SEEN in the testator’s possession OR cntrl…AND…

1) Is NOT FOUND after death→ the testator INTENTIONALLY revoked the Will by PHYSICAL ACT
2) Is found in a DAMAGED condition after death→ the testator INTENTIONALLY revoked the Will by PHYSICAL ACT

NOTE: NEITHER presumption arises IF the Will was last seen in the possession of SOMEONE ADVERSLY EFFECTED by its contents (e.g. a person who would inherit under this Will)

Question 3

Will changes on the face of the Will effect it?

Answer 3

NO! The ONLY 2 ways a testator can make changes to her Will are: 1) write a NEW Will which REVOKES the first one; OR
2) make a CODICIL changes only part of the Will

NOTE: BOTH forms must be duly executed (i.e. satisfy the 7 points)

Words added to a Will AFTER it’s signed/witnessed are DISREGARDED (unless the changes are duly executed w/ witnesses)

PARTIAL revocation by physical act (e.g. black marker thru a line) is NOT recognized in NY

Question 4

Can an EARLIER Will (or certain prvns) be “revived” by destroying a LATER Will (or codicil)?

Answer 4

NO “revival” of the previous Will or prvns

UNLESS…

1) Re-execution: the EARLIER Will was re-signed and re-witnessed (7 point formalities); OR
2) Republication by codicil: execution of a codicil that incorporates by reference the prior Will OR one or more of its prvns

NOTE: (i) if FIRST Will is properly revoked; AND (ii) the second Will is properly distroyed by physical act→NO Will is admited to PROBATE (unless saved by dependent relative revocation,DRR)

Question 5

What is the common lawdoctrine of dependent relative revocation (DRR)?

Answer 5

DRR permits a revocation of a LATER Will to be DISREGARDED

The effect is to allow the 2d Will into probate

REQUIREMENTS:

1) The testator’s 2d REVOCATION must be premised OR dependent upon a MISTAKE OF LAW (i.e. that revocation of the LATER Will will “revive” the earlier Will); AND
2) The distribution by ADMITTING the 2d Will to probate is CLOSER to testator’s INTENT than what would result from INTESTACY NOTE: if you get a DRR question, ARGUE BOTH SIDES!!

Question 6

What must be proven to overcome the PRESUMPTION of revocation from lost/damaged Wills?

Answer 6

Proponent of lost/damaged Will must do 3 things…

1) Prove that the lost/damaged will was duly executed (i.e. made p/t 7 points)
2) Prove that the lost/damaged Will was NOT “revoked” OR should not be revoked Evidence IS admissible to REBUT the presumption of revocation(i.e. when the Will is lost or damaged) Under dependent relative revocation (DRR), prove that the revocation should be disregarded b/c of a mistake of law
3) The PRVNSof the lost/damaged Will must be “clearly and distinctly proven” by (i) ea. of (at least) 2 witnesses; (ii) OR by copy/draft of the Will proved to be TRUE and COMPLETE