Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Wills & Thrills > Will Revocation > Flashcards

Will Revocation Flashcards

1
Q

key requirement

REVOCATION OF WILL

A

= testamentary capacity

same as required to make a will

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

way to revoke a will

REVOCATION OF WILL

A
  1. By a subsequent will/codicil
  2. By physical act
  3. By operation of law
  4. By losing will
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

upc action resulting in revocation

REVOCATION OF WILL

A

A will or any part thereof is revoked by

1. executing a subsequent will that revokes the previous will or part expressly or by inconsistency

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

tn action resulting in revocation

REVOCATION OF WILL

A

A will or any part thereof is revoked by

  1. A subsequent will other than a noncupative will that revokes the prior will or part expressly or by inconsistency
  2. Document of revocation, executed with all the formalities of an attested will or a holographic will, but not a noncupative will, that revokes the prior will or part expressly
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

extent of revocation

EXPRESS REVOCATION

A

can be complete OR partial

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

method

EXPRESS REVOCATION

A
  1. write out intent to revoke will

2. execute in same way as making will (signature, witnesses, etc.)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

rule

REVOCATION BY INCONSISTENCY

A

when a testator dies with two inconsistent instruments and subsequent instrument does not expressly revoke the first

  1. to the extent possible = instruments will be read together
  2. implied revocation as to any inconsistency = second instrument controls
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

codicil

REVOCATION BY INCONSISTENCY

A

codicil will revoke only to the extent of any inconsistency

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

residuary clause

REVOCATION BY INCONSISTENCY

A

residuary clause in the second will revokes first will in its entirety

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

extent of revocation

REVOCATION BY INCONSISTENCY

A

can be complete OR partial

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

requirement of concurrence

REVOCATION BY PHYSICAL ACT

A

= must have BOTH
1. intent to revoke
2. requisite physical act
in existence concurrently

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

elements

REVOCATION BY PHYSICAL ACT

A
  1. Act of revocation
  2. By testator or proxy
  3. With intent to revoke
  4. With Capacity
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

requisite physical act

REVOCATION BY PHYSICAL ACT

A

sufficient acts

  1. burning
  2. tearing
  3. cancelling
  4. obliterating
  5. destroying
  6. and synonyms thereof
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

upc requisite physical act

REVOCATION BY PHYSICAL ACT

A 
Revocatory act on the will = 
1. burning 
2. tearing 
3. cancelling
4. obliterating
5. destroying
WHETHER OR NOT the burn/tear/cancellation touched any words on will
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

majority requisite physical act

REVOCATION BY PHYSICAL ACT

A

burn/tear/cancellation must cross/touch the language of the will

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

tn requisite physical act

REVOCATION BY PHYSICAL ACT

A

Unclear if burn/tear/cancellation must cross/touch the words

…PROBABLY doesn’t have to

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

duplicate copies

REVOCATION BY PHYSICAL ACT

A

rule = act of revocation on one executed copy revokes all executed copies

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

photocopies

REVOCATION BY PHYSICAL ACT

A

UPC/majority = mark on photocopy is insufficient

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

codicils

REVOCATION BY PHYSICAL ACT

A

rule = revocation of a will revokes codicils as well

converse = NOT TRUE

rule = revocation of a codicil does not revoke underlying will itself

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

revocation by proxy

REVOCATION BY PHYSICAL ACT

A

must be done at testator’s direction AND in testator’s presence

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

partial revocation

REVOCATION BY PHYSICAL ACT

A

All depends on intent = what did testator intend to revoke

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

2 questions court must answer

REVOCATION BY PHYSICAL ACT

A

Two questions court has to answer

  1. Who did the act
  2. With what intent
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

uses of presumptions

REVOCATION BY PHYSICAL ACT

A

In answering these questions, court use two presumptions

  1. Will in testator’s possession from execution to death and at death found in mutilated condition = presumption is testator did that act with intent to revoke
  2. Will last seen to be in testator’s possession and control which can’t be found at testator’s death = presumption is testator destroyed it with intent of revoking it
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

revocation by losing will

REVOCATION OF WILL

A

A. = will has been destroyed or lost BUT NOT REVOKED

25
Q

tn presumption

REVOCATION BY LOSING WILL

A
  1. fact that a will cannot be found after a due and proper search raises a presumption that the testator himself destroyed the will
26
Q

tn rebuttal to intentional destruction

REVOCATION BY LOSING WILL

A
  1. elements of rebuttal
    a) the fact that the will was executed in accordance with the forms of law AND
    b) the substance or contents of the will AND
    c) that the will has not been revoked
27
Q

tn standard of proof

REVOCATION BY LOSING WILL

A

a) proponent of a lost will must prove BY
(1) the clearest and most stringent evidence OR
(2) clear, cogent, and convincing proof

28
Q

if first person to search for will had been T’s sole heir (who was not beneficiary in will), would this fact overcome the presumption of revocation?
REVOCATION BY LOSING WILL

A
  • YES in FL

- Maybe in TN?

29
Q

3 instances

REVOCATION THROUGH OPERATION OF LAW

A
  1. divorce
  2. marriage
  3. children
30
Q

divorce basic rule

REVOCATION THROUGH OPERATION OF LAW

A

= divorce following execution of a will is going to revoke all provisions in favor of the ex-spouse
AKA going to construe the will itself as if the spouse had predeceased

31
Q

effect of remarriage to same spouse

REVOCATION THROUGH OPERATION OF LAW

A

= restore spouse to the will

32
Q

effect of mere separation instead of divorce

REVOCATION THROUGH OPERATION OF LAW

A

= mere separation does not affect spouse’s right under the will

33
Q

effect of separation to property settlement agreement

REVOCATION THROUGH OPERATION OF LAW

A

= property settlement agreement is treated as a waiver

AKA will construed as if spouse had predeceased

34
Q

effect of divorce on revocable trust

REVOCATION THROUGH OPERATION OF LAW

A

UPC/TN = divorced is written out of revocable trust too

35
Q

effect of divorce insurance policy

REVOCATION THROUGH OPERATION OF LAW

A

Majority = divorced spouse is not written out of life insurance policy

UPC = divorced spouse is written out of life insurance policy

36
Q

subsequent marriage

REVOCATION THROUGH OPERATION OF LAW

A

Majority = marriage after execution of will has no effect on will

TN/UPC = creates pretermitted spouse situation

37
Q

birth/adoption of child after execution of will

REVOCATION THROUGH OPERATION OF LAW

A

Majority/TN/UPC = May entitle pretermitted child to claim

38
Q

3 principles

REVOCATION RULES OF CONSTRUCTION

A
  1. Presumption against intent for intestacy
  2. Function of court in construing wills
  3. Timing of revocatory effect
39
Q

presumption against intent for intestacy

REVOCATION RULES OF CONSTRUCTION

A

law presumes that one who undertakes to make a will does not intend to die intestate

40
Q

2 functions of court in construing wills

REVOCATION RULES OF CONSTRUCTION

A
  1. to determine the intent of the testator AND

1. if the testator’s intention can be determined, to implement it

41
Q

time of revocatory effect

REVOCATION RULES OF CONSTRUCTION

A

Under the law, revocation clauses are

  1. not ambulatory AND
  2. effective upon execution (unlike the other provisions of a will)

= when T duly executes a will containing an express revocation clause, all prior wills are instantly revoked

42
Q

2 doctrines

IMPACT OF REVOCATION

A
  1. Revival

2. Dependent relative revocation

43
Q

basic facts

REVIVAL OF REVOKED WILLS

A

will 1
will 2 revokes will 1
T cancels will 2 with intent of reviving will 1

44
Q

B. does revocation of will 2 revive will 1?

REVIVAL OF REVOKED WILLS

A

Half the states = no
UPC = maybe
TN = maybe

45
Q

tn impact of revoking second will

REVIVAL OF REVOKED WILLS

A

TN = maybe

Mere of act of revocation of a subsequent inconsistent or revocatory will
1. does not of itself revive a former will and
2. creates no presumption for or against revival
BUT “question to be determined from all the facts and circumstances is the intention of the testator”

46
Q

upc impact of revoking second will

REVIVAL OF REVOKED WILLS

A

UPC = maybe

Allows revocation if
1. it still exists AND
2. we can show testator’s intent for its revival
= will 1 is revived

47
Q

definition

DEPENDENT RELATIVE REVOCATION

A

AKA DRR

= Court-developed doctrine that allows a court to disregard a revocation when

  1. T revokes her will (entirely or in part) AND
  2. T had alternative plan of disposition that failed b/c of mistake of law or fact AND
  3. The revoked will reflects T’s true intent (= alternative plan) better than intestacy (or other disposition)

RECOGNIZED IN TN

48
Q

rationale

DEPENDENT RELATIVE REVOCATION

A

(legal fiction)

T’s intent was conditional
= intent was dependent on premise that didn’t exist
= intent didn’t exist
= revocation

49
Q

but-for requirement

DEPENDENT RELATIVE REVOCATION

A
  1. court must be satisfied that but-for the testator’s mistake, the testator would have never made the revocation
50
Q

but-for analysis

DEPENDENT RELATIVE REVOCATION

A
  1. court compares undoing the cancellation with not undoing it
  2. chooses the one closer to T’s intent
51
Q

mistake of fact additional requirement

DEPENDENT RELATIVE REVOCATION

A

to be remedied, T’s mistake must appear in the language of the revoking instrument

52
Q

definition

POST-EXECUTION INTERLINEATIONS OF WILL

A

= new gift written into will after execution

53
Q

factual situation

POST-EXECUTION INTERLINEATIONS OF WILL

A
  1. T’s typewritten will makes a bequest of 10K to my friend X
  2. Subsequent to will’s execution, T draws a line through 10K, writes 15K next to it, and signs his name in the margin
  3. Can the interlineation of 15K to X be given effect?
54
Q

basic rule

POST-EXECUTION INTERLINEATIONS OF WILL

A

= post-execution changes to the will are not effective

55
Q

exception

POST-EXECUTION INTERLINEATIONS OF WILL

A

UNLESS one of three tests are met

56
Q

3 tests for effectiveness

POST-EXECUTION INTERLINEATIONS OF WILL

A

FIRST POSSIBILITY = After making the change, T either re-executes the will or re-publishes the will by codicil

SECOND POSSIBILITY = Facts arise in jurisdiction that recognizes holographic wills and change constitutes a complete signed disposition

THIRD POSSIBILITY = facts arise in jurisdiction that recognizes holographic wills and both the change and will are holographic
(in this case, change doesn’t even have to be signed b/c holographic changes to holographic wills are effective whether signed to not)

57
Q

re-execution

POST-EXECUTION INTERLINEATIONS OF WILL

A

= on the same piece of paper

58
Q

republication by codicil

POST-EXECUTION INTERLINEATIONS OF WILL

A

= on separate sheet

59
Q

applicable law

EXAM INSTRUCTIONS

A
  1. wills = tn (compare to UTC)
    intestacy = tn (compare to UTC)
  2. trusts = UTC (or majority if UTC silent)
  3. non-probate transfers = majority
  4. powers of appointment = majority
  5. uniform prudent investment act = adopted by tn
  6. uniform principle and income act = adopted by tn

Wills & Thrills (12 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions