Wills — Revival, Revocation and DRR

Question 1

In Re Kimmel’s Estate

Answer 1

Demonstrated that in order to create a holographic will you do not need to believe that you are creating a will, rather, just need to write content on a piece of paper that acts as a will. In order words, as long as the document intents to dipose of the testator’s property it be be a valid holographic will.

Question 2

Revocation by Wills

Answer 2

A will may revoked by either:
1. executing a subsequent will that revokes the previous will; OR
The revocation may be in an entirety or just in-part. Additionally, the revocation does not have to be explicit it may be by consistency.
2. The testator can perform some act on the will itself, either intentionally or another individual may perform the act in the conscious presence of the testator and by the testator’s direction.
The act may be:
-burning, tearing, canceling, obliterating or destroying the will or any part of it.

Note: in CA, if there is a duplicate, one of the duplicates may be revoked if it is burned, torn, cancelled, obliterated or destroyed with intent and purpose of revoking it by either the testator or another person acting by the direction of the testator.

Further Note: in CA, the physical act of revoking must actually interfere with the words of the document.

Question 3

Dependent Relative Revocation

Answer 3

This doctrine is used for undoing mistaken revocations. Basically, its a fail safe when courts think the testator mistakenly revoked a will, they will revive that will if they think that’s what the testator intended.

Note, DRR, unlike revival, may be applied to a will that is revoked by physical act. It really depends on the evidence depicting the testator’s intent.

Question 4

Revival

Answer 4

If will 2 expressly revokes will 1, and if will 3 revokes will 2, will 3 may revive will 1 if based on will 3’s language reviving will 1 seems to be what the testator wanted.

Note: if will 1 was revoked by physical act, then will 1 may NOT be revived by will 3.

Will 2 may also be revoked by physical act and then this may also revive will 1 based on the testator’s intent.

In CA, it is presumed that the revival is not valid.