Will Revocation

Question 1

How can a will be revoked?

Answer 1

1) By subsequent TESTAMENTARY INSTRUMENT EXECUTED w/ ALL appropriate formalities (i.e. 7 points); OR 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 2nd VALIDLY executed & without an EXPRESS revocation clause→read both instruments together (2nd Will = codicil); only revokes to the extent that there are INCONSISTENT provisions. BUT, if the 2nd will is WHOLLY inconsistent with 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...															
	- at the testator's REQUEST;
	- in the testator's PRESENCE; AND
	- witnessed by AT LEAST 2 witnesses
														NOTE: at LEAST 4 people must be in the room:
	(i) the testator; 
	(ii) the destroyer; AND 
	(iii) 2 witnesses

Question 2

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

Answer 2

When a Will was LAST SEEN in the testator’s possession OR control…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 with witnesses)

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

Question 4

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

Answer 4

NO revival of the previous Will or provisions 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 provisions

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 2nd Will into probate

REQUIREMENTS:
1) The testator’s 2nd 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 2nd 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 with the 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 because of a mistake of law

3) The provisionof the lost/damaged Will must be “clearly and distinctly proven” by
(i) each of (at least) 2 witnesses; OR
(ii) by copy/draft of the Will proved to be TRUE and COMPLETE