Will Revocation

Question 1

REVOCATION OF WILL

What are 2 ways that a Will can be revoked?

HIGHLY TESTED MATERIAL
(REVOCATION By subsequent TESTAMENTARY INSTRUMENT or CODICIL)

Answer 1

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

THIS NEW INSTRUMENT WILL BE EITHER:
1a) “Revocation by inconsistency or implication”:
INCONSISTENCY → if there is a 2d VALIDLY executed Will BUT w/o an EXPRESS revocation clause → read both instruments together (2nd Will = codicil); only revokes to the extent that there are INCONSISTENT prvns

IMPLICATION → BUT, if the 2d will is WHOLLY inconsistent w/ the first→ the ENTIRE first will is revoked by implication

OR

1b) 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

2) By PHYSICAL ACT (e.g. burning; tearing; cutting; canceling; obliteration; anything done to testator’s SIGNATURE;OR other act of mutilation)

2a) ACT IS REQUIRED,

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

2b) AND MUST have the INTENT to revoke WHEN the physical act is taken → If will is destroyed by mistake no revocation occurs
2c) MENTAL CAPACITY RQD

Testator must be of sound mind.

A destruction induced by undue influence, duress, or fraud is likewise ineffective

NOTE: Partial Revocation By Physical Act IS NOT RECOGNIZED in NY!

Question 2

REVOCATIONS AND PRESUMPTIONS

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

Answer 2

PRESUMPTION OF REVOCATION

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)
——————————————————————–
PRESUMPTION OF NON-REVOCATION IF…

1) Will found in “normal” location; AND

Will found in the possession of a person to whom the testator delivered the will or among the testator’s valuable papers in a place the testator usually kept
valuable papers (e.g., a safe deposit box or filing cabinet).

2) No suspicious circumstances

No circumstances to cast suspicion on the genuineness of the 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

CONDITIONAL REVOCATION :
Implied Conditional Revocation or Dependent Relative Revocation (DPR)

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

Answer 5

DRR permits a revocation of a LATER Will to be DISREGARDED

Fact Pattern

a. Testator validly executes Will One.
b. Testator validly revokes Will One (e.g., rips it up).
c. Testator executes Will Two but it is INVALID (e.g., not published).

KEY ISSUE TO ARGUE:
Does will one remain, i.e., was revocation of Will One impliedly conditioned on validity of Will Two?

ANSWER:
Depends on Testator’s Intent — Would testator have preferred Will One over intestacy?
LOOK AT AND DISCUSS THESE FACTORS:
(i) IF TWO WILLS ARE SIMILAR — The more similar the provisions of the two wills, the more likely the court will apply DDR.
(ii) IF TWO WILLS ARE DIFFERENT — The more different the wills, the more likely the testator would have preferred intestacy to Will One.

Note that the New York case law is unclear on whether DDR is recognized so on the exam, be sure to discuss what would happen both ways.

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

Question 7

LOST WILLS

HOW CAN THE FACT THAT A WILL WAS LOST BE PROVEN?

Answer 7

LOST WILLS

Possible to prove but hard to overcome revocation presumption.

The proponent is required to prove:

1) the lost will was DULY EXECUTED;
2) the cause of non-production such as destruction by fire, flood, theft, hurricane, etc., AND
3) the provisions of the wills are proved clearly and distinctly by at least TWO (2) credible witnesses or by a copy or draft f the will proved to be true and complete

Question 8

CONDITIONAL REVOCATION:

Express Conditional Revocation

Answer 8

Express Conditional Revocation = The testator states in the revoking instrument that a revocation is effective upon the happening (or non-happening) of a named event.

Question 9

REVIVAL

NOT RECOGNIZED IN NY

Answer 9

REVIVAL
Fact Pattern
a. Testator executes Valid Will One.
b. Testator executes Valid Will Two which expressly revokes Will One.
c.Testator then validly revokes Will Two.

Does Will One revive?
Result = NO Revival

A revocation clause is effective when executed just like a revocation by physical act.

Treat as two legal documents — revocation effective now; dispositive effect when testator dies.