Will Revocation Flashcards
What are 2 ways that a Will can be revoked?
1) By subsequent TESTAMENTARY INSTRUMENT EXECUTED w/ ALL appropriate formalities (i.e. 7 points); 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… at the testator’s REQUEST; in the testator’s PRESENCE; AND witnessed by AT LEAST 2 witnesses
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
What are 2 key presumptions re: revocation of a Will by physical act?
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)
What are the only 2 ways that a testator can make changes to their will?
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 that 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
Can an EARLIER Will (or certain prvns) be “revived” by destroying a LATER Will (or codicil)?
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)
What is the common lawdoctrine of dependent relative revocation (DRR)?
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!!
What must be proven to overcome the PRESUMPTION of revocation from lost/damaged Wills?
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” Evidence IS admissible to REBUT the presumption of revocationOR 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
