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Will Revocation Flashcards

1
Q

key requirement

REVOCATION OF WILL

A

= testamentary capacity

same as required to make a will

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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
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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

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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
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5
Q

extent of revocation

EXPRESS REVOCATION

A

can be complete OR partial

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6
Q

method

EXPRESS REVOCATION

A
  1. write out intent to revoke will

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

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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
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8
Q

codicil

REVOCATION BY INCONSISTENCY

A

codicil will revoke only to the extent of any inconsistency

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9
Q

residuary clause

REVOCATION BY INCONSISTENCY

A

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

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10
Q

extent of revocation

REVOCATION BY INCONSISTENCY

A

can be complete OR partial

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11
Q

requirement of concurrence

REVOCATION BY PHYSICAL ACT

A

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

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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
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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
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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
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15
Q

majority requisite physical act

REVOCATION BY PHYSICAL ACT

A

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

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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

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17
Q

duplicate copies

REVOCATION BY PHYSICAL ACT

A

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

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18
Q

photocopies

REVOCATION BY PHYSICAL ACT

A

UPC/majority = mark on photocopy is insufficient

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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

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20
Q

revocation by proxy

REVOCATION BY PHYSICAL ACT

A

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

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21
Q

partial revocation

REVOCATION BY PHYSICAL ACT

A

All depends on intent = what did testator intend to revoke

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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
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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
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24
Q

revocation by losing will

REVOCATION OF WILL

A

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

25
tn presumption | REVOCATION BY LOSING WILL
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
tn rebuttal to intentional destruction | REVOCATION BY LOSING WILL
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
tn standard of proof | REVOCATION BY LOSING WILL
a) proponent of a lost will must prove BY (1) the clearest and most stringent evidence OR (2) clear, cogent, and convincing proof
28
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
- YES in FL | - Maybe in TN?
29
3 instances | REVOCATION THROUGH OPERATION OF LAW
1. divorce 2. marriage 3. children
30
divorce basic rule | REVOCATION THROUGH OPERATION OF LAW
= 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
effect of remarriage to same spouse | REVOCATION THROUGH OPERATION OF LAW
= restore spouse to the will
32
effect of mere separation instead of divorce | REVOCATION THROUGH OPERATION OF LAW
= mere separation does not affect spouse’s right under the will
33
effect of separation to property settlement agreement | REVOCATION THROUGH OPERATION OF LAW
= property settlement agreement is treated as a waiver | AKA will construed as if spouse had predeceased
34
effect of divorce on revocable trust | REVOCATION THROUGH OPERATION OF LAW
UPC/TN = divorced is written out of revocable trust too
35
effect of divorce insurance policy | REVOCATION THROUGH OPERATION OF LAW
Majority = divorced spouse is not written out of life insurance policy UPC = divorced spouse is written out of life insurance policy
36
subsequent marriage | REVOCATION THROUGH OPERATION OF LAW
Majority = marriage after execution of will has no effect on will TN/UPC = creates pretermitted spouse situation
37
birth/adoption of child after execution of will | REVOCATION THROUGH OPERATION OF LAW
Majority/TN/UPC = May entitle pretermitted child to claim
38
3 principles | REVOCATION RULES OF CONSTRUCTION
1. Presumption against intent for intestacy 2. Function of court in construing wills 3. Timing of revocatory effect
39
presumption against intent for intestacy | REVOCATION RULES OF CONSTRUCTION
law presumes that one who undertakes to make a will does not intend to die intestate
40
2 functions of court in construing wills | REVOCATION RULES OF CONSTRUCTION
1. to determine the intent of the testator AND | 1. if the testator’s intention can be determined, to implement it
41
time of revocatory effect | REVOCATION RULES OF CONSTRUCTION
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
2 doctrines | IMPACT OF REVOCATION
1. Revival | 2. Dependent relative revocation
43
basic facts | REVIVAL OF REVOKED WILLS
will 1 will 2 revokes will 1 T cancels will 2 with intent of reviving will 1
44
B. does revocation of will 2 revive will 1? | REVIVAL OF REVOKED WILLS
Half the states = no UPC = maybe TN = maybe
45
tn impact of revoking second will | REVIVAL OF REVOKED WILLS
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
upc impact of revoking second will | REVIVAL OF REVOKED WILLS
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
definition | DEPENDENT RELATIVE REVOCATION
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
rationale | DEPENDENT RELATIVE REVOCATION
(legal fiction) T's intent was conditional = intent was dependent on premise that didn’t exist = intent didn’t exist = revocation
49
but-for requirement | DEPENDENT RELATIVE REVOCATION
1. court must be satisfied that but-for the testator’s mistake, the testator would have never made the revocation
50
but-for analysis | DEPENDENT RELATIVE REVOCATION
1. court compares undoing the cancellation with not undoing it 2. chooses the one closer to T’s intent
51
mistake of fact additional requirement | DEPENDENT RELATIVE REVOCATION
to be remedied, T’s mistake must appear in the language of the revoking instrument
52
definition | POST-EXECUTION INTERLINEATIONS OF WILL
= new gift written into will after execution
53
factual situation | POST-EXECUTION INTERLINEATIONS OF WILL
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
basic rule | POST-EXECUTION INTERLINEATIONS OF WILL
= post-execution changes to the will are not effective
55
exception | POST-EXECUTION INTERLINEATIONS OF WILL
UNLESS one of three tests are met
56
3 tests for effectiveness | POST-EXECUTION INTERLINEATIONS OF WILL
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
re-execution | POST-EXECUTION INTERLINEATIONS OF WILL
= on the same piece of paper
58
republication by codicil | POST-EXECUTION INTERLINEATIONS OF WILL
= on separate sheet
59
applicable law | EXAM INSTRUCTIONS
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

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