Will Revocation

Question 1

A will can be revoked by operation of the law in which circumstances?

Answer 1

• Marriage
• Divorce/annulment
• Pretermitted or omitted children
• Murder

Question 2

Testator executes a will leaving all his property to his nephew. He then marries for the first time, but forgets to change his will. Under the two different theories, will his wife inherit anything?

Answer 2

COMMON LAW STATES = surviving spouse entitled to certain %, irrespective of what the will says

COMMUNITY PROPERTY STATES = surviving spouse owns an undivided interest in property acquired after marriage

Question 3

For a state that applies the common law approach to giving the spouse a share of their deceased spouse’s estate, how will the courts calculate the shares?

Answer 3

Varies from state to stage. Computation method depends on number of children, length of marriage, surviving spouse’s own assets, etc.

Question 4

What effect will divorce have on the surviving ex-spouse’s share under the will?

Answer 4

All gifts and appointments void and the ex-spouse treated as though they predeceased the testator.

Many states also revoke gifts to relatives of former spouse

Question 5

In which circumstances will a pretermitted child benefit, even though they have been omitted from their parent’s will?

Answer 5

• if State has a statute governing these issues, child might still take an intestate share
• if the child was born after the will was executed, the state may provide a forced share (often out of the residue)

Question 6

When does the pretermitted child get nothing (in circumstances where they’ve been omitted from the will)?

Answer 6

Entire estate goes to surviving parent

Or testator intentionally omits the child (but can be overturned with extrinsic evidence)

Question 7

In order to revoke a will by physical act, what requirements must be shown?

Answer 7

Testator (or proxy) burns, tears, cuts, cancels or obliterates the will.

And they intend to revoke the will.

Question 8

If testator crosses out a particular clause in a will, signing and dating it, will this amendment be valid?

Answer 8

1. Some states find this ineffective because it fails to comply with will formalities
2. Other states hold this effective if there is enough evidence that T made the change

Question 9

If a will cannot be found in T’s possession or it’s mutilated, what is the effect?

Answer 9

Creates a presumption of revocation

Question 10

A person revokes a codicil which references their will. Does this also revoke the will?

Answer 10

No, but would have done if they’d revoked the will (then codicil revoked too)

Question 11

A subsequent will or codicil can be revoked by what means?

Answer 11

Expressly or by inconsistently (like a new will with different terms)

Question 12

What are the three possible approaches for revival of a will?

Answer 12

1. Revival approach = revocation of the later will means the revocation clause never took effect and will no. 1 remains valid
2. No Revival Approach = the second will was a revocation instrument
3. Intent approach = consider facts and T’s intent

Question 13

In what circumstances should you consider dependant relative revocation?

Answer 13

Where T executed will no. 1, then revoked it and executed will no. 2. However the second will is not valid. The question is then whether revocation of the first will was impliedly conditional on the validity of the second will

Question 14

When is dependant relative revocation more likely to apply?

Answer 14

The will provisions in no. 1 vs. no. 2 are more similar

Question 15

When dependant relative revocation applies, what is the effect?

Answer 15

The first will is considered never to have been revoked (rather than revived)