Wills - Revocation and Related Issues Flashcards
Revocation by Operation of Law: Omitted Spouse / Marriage after Will Execution
Can be partial or total. Occurs automatically.
Marriage after will execution:
-> Omitted spouse keeps 1/2 of community property plus takes intestate share
–» But separate property is limited to 1/2 of the value of the deceased spouse’s separate property
Exceptions:
1) Intentional omission shows intent to exclude omitted spouse
2) Omitted spouse is already provided for with non-probate transfers like life insurance, joint bank account, etc
3) Omitted spouse waives right to omitted share
4) Spouse was care custodian of dependent adult, can’t claim this share
If we do give the omitted spouse a share, the other beneficiaries of the will/revocable trust share the burden of that cost pro rata. A court could even hold a specific gift is exempt from apportionment if doing so would defeat T’s intent.
Revocation by Operation of Law: Divorce
Divorce revokes all provisions in favor of former spouse unless:
1) will expressly provides otherwise
2) spouses remarry
We read the will assuming the spouse predeceased.
Only occurs with FINAL divorce, not just pending
Revocation of Law: Pretermitted/Omitted Child
The purpose of this is to provide a share for a left-out child assuming T would have made a provision for that child if T had thought about it.
How to be a pretermitted child? Be born or adopted AFTER the will was executed.
2 situations where a child could still be pretermitted if born BEFORE will:
1) T thought the kid was already dead
2) it was a child T never knew he had (affairs) AND
Will can’t have an intent to exclude that child. If all or most of estate is left to the child’s parent, then that also makes the pretermitted child NOT get a share (because the other parent would take care of the child presumably).
What does the pretermitted child get if they are pretermitted and not excluded from getting a forced share?
THey get:
1) Intestate share of probate estate plus trusts that become irrevocable at death
2) Beneficiaries share burden pro rata in making up the share of the pretermitted child unless the court finds that doing so would disturb T’s obvious intent.
NO KILLER BENEFICIARIES: Will provisions in favor of person who murders T are revoked by operation of law.
Revocation by Physical Act
Must have:
1) intent to revoke. If will destroyed by mistake, no revocation occurs. If T picked up a stack of papers and put them in shredder and it accidentally included his will, that’s not revoked
2) must have mental capacity. It’s basically testamentary capacity but at the time of revocation. No duress or fraud can make this legitimate.
3) Physical act - burning (even slightly signing counts), tearing, obliteration, cancellation (writing “void”), defacing signature. Gotta show all of these were done by Testator
Proxy Revocations valid if done:
1) at testator’s request and
2) in testator’s presence
Partial Revocation by Physical Act:
1) Revoking individual gifts is permitted
2) Cannot increase gifts unless it’s a residual that gets increased by default.
Ex: T includes 5k gift to Alice, but crosses it out and writes 10k. Does Alice get 10k? Nope. The new gift wasn’t executed with the formalities of a valid will. It’s possible to still save that 5k gift through Dependent Relative Revocation.
Duplicate Original Wills
NEVER execute duplicate originals. A will is not a contract. Everyone in contracts gets an original duplicate, but a will is called a “LAST WILL” for a reason.
The physical act revocation of one of the multiple originals is effective to revoke all of them.
Revocation by Subsequent Will
Subsequent will must meet all normal validity reqs. Normally revoke the old one using an express revocation provision.
Could do it with either:
1) Express revocation in subsequent will
2) Inconsistent provisions in latest will. Ex: “this is my last will” can do this. Also “I give X to John” then later “I give X to Jim” revoked the gift to John. If the new will only partially disposes of the testator’s property, the old will is revoked only as to its inconsistent parts.
Presumptions
Presumption of Nonrevocation: if the will is found in normal location and no suspicious circumstances surround it, like it’s just kept in a safe deposit box or filing cabinet, then the will enjoys a presumption that it has not been revoked.
Missing or damages original raises rebuttable Presumption of Revocation. But sometimes a will can’t be found because it was lost. Fire, flood, etc. Can come forward with some evidence to rebut the presumption of revocation that arises when you don’t have the original.
Revival
This concept requires the following type of fact pattern:
1) T executes Will 1 and it’s valid
2) Then T executes Will 2 which is valid and says “I hereby revoke Will 1”
3) Then T validly revokes Will 2. Does Will 1 exist? There are 3 different approaches but CA approach is to look at extrinsic evidence to determine T’s intent. Maybe the will revives, maybe it doesn’t. CA follows the INTENT APPROACH
Conditional Revocation
2 types:
1) Express conditional revocation: T says the revocation happens based on a particular event. Rare
2) Implied conditional revocation (DEPENDENT RELATIVE REVOCATION):
–> Step 1: T executes Will 1 and it’s perfect.
–> Step 2: Then T revokes Will 1, tears it up, and then executes Will 2, but it’s invalid for some reason. Does Will 1 remain? Was his revocation by tearing it up impliedly conditioned on the validity of Will 2? Romeo and Juliet revocation: Romeo’s intent to kill himself was conditioned on Juliet being dead. If he knew she was alive, he wouldn’t have killed himself. So if T knew what he was doing, he would not have revoked Will 1 because he only did that assuming Will 2 was valid. This means Will 1 is revived via DRR. The more similar the provisions of the 2 wills, the more likely the court will be to apply this doctrine of DRR. But if the wills were very different, they will kill Will 1 in favor of intestacy.
