Wills - Revocation and Revival

Question 1

Three physical acts can revoke a will:

Answer 1

Subsequent Written Instrument.

Cancellation.

Partial Revocation.

Question 2

Subsequent Written Instrument.

Answer 2

A will can be revoked by either:

1. A subsequent written instrument that is executed for the sole purpose of revoking the prior will;

OR

2. A subsequent will/codicil containing a revocation clause or provisions that are inconsistent with those of the prior will (only revokes to the extent it conflicts with the prior will).

Question 3

Cancellation.

Answer 3

A will is revoked if the testator, or another person in his presence and at his direction burns, tears, obliterates, or destroys the will WITH the intent to revoke the will.

Under the common law, words of cancellation are valid ONLY IF they come in physical contact with the words of the will (e.g., words of cancellation are written over the original terms of the will).

Under the UPC, words of cancellation need NOT touch any of the words of the will, but they must be somewhere on the will to validly revoke.

Question 4

Partial Revocation.

Answer 4

In most states, when marks of cancellation (e.g., putting a line through terms in the will) are found on a will known to last have been in the testator’s possession, a presumption arises that such marks were made by the testator with the intent to revoke.

The burden to overcome this presumption is on the party claiming that the devise has not been revoked.

If a devise is revoked, it passes as part of the residuary estate. However, some states do NOT permit partial revocations.

Question 5

In certain circumstances, dispositions made under a will are revoked by

Answer 5

operation of law.

Question 6

At common law, divorce did

Answer 6

NOT revoke a testator’s devise to a former spouse by operation of law.

Today, a divorce revokes provisions in a will that devise property to the testator’s former spouse (usually also includes relatives of the former spouse) by operation of law UNLESS the will or court expressly provides otherwise.

However, the devise may be revived if the spouses remarry.

Question 7

If a provision in favor of the former spouse is revoked by operation of law

Answer 7

, the devise passes as if the former spouse predeceased the testator.

Question 8

What is dependent relative revocation

Answer 8

Under DRR, the valid revocation of a will may be ignored if the will was revoked under the testator’s mistaken belief of law or fact that the testator could revive an earlier will, or modify his disposition of property by codicil or new will.

Question 9

DRR ONLY applies when

Answer 9

the court can determine that the testator would have preferred the disposition in the revoked will over the disposition resulting from a finding that the testator died intestate.

Question 10

Under the common law, What is revival of a will?

Answer 10

Under the common law, the revocation of a subsequent will automatically revives the prior will (i.e., no intent requirement).

Question 11

Under the modern view, What is revival of a will?

Answer 11

most states permit revival of a revoked will if:

It is evident that the testator intended the revoked will to take effect as executed;

OR

The testator republishes the revoked will with a subsequent will or codicil that complies with the statutory formalities for execution.