Wills: revocation and revival

Question 1

Revocation by subsequent instrument

Answer 1

A testator can revoke a will or codicil by executing a later valid will or codicil that partly or completely revokes the prior will or codicil.

Oral revocations are not valid.

A revocation can be partial (part of the original will or codicil is revoked, but part of it is not) or complete (the entire original will or codicil is revoked).

Question 2

Revocation by subsequent instrument: express or implied

Answer 2

A revocation is:

(1) express if the new will or codicil expressly states that it is revoking the prior will or codicil;
(2) implied if the terms of the new will or codicil conflict with the terms of the prior will or codicil.

If there are inconsistencies between the prior will or codicil and the subsequent will or codicil, the later document controls and revokes the prior inconsistencies.

Question 3

Revocation by physical destruction

Answer 3

A will or codicil may be partially or completely revoked by destroying a portion of the will or codicil with the intent to revoke it. The act of destruction must occur with the intent to revoke: i.e., simultaneous act and intent.

Destruction of a signed original or duplicate original presumptively destroys all copies.

(1) Majority rule:

An effective canceling of a will requires defacement of the language of the will: i.e., at least some of the language must be crossed out, including the signature.

(2) Uniform Probate Code:

The destructive act need only affect some part of the will.

Question 4

Revocation by physical destruction: lost will

Answer 4

If a will once known to exist cannot be found at the testator’s death, or is found mutilated, then there is a rebuttable presumption of revocation.

The presumption is inapplicable if a duplicate original is found.

Extrinsic evidence is permitted to rebut the presumption.

Question 5

Revocation by physical destruction: third party

Answer 5

A third party can revoke through physical destruction of the will or codicil on behalf of the testator if it is requested by testator and destroyed in testator’s presence.

Question 6

Revocation by operation of law

Answer 6

In most states, divorce revokes all will provisions in favor of the former spouse unless it can be shown that the testator intended for the will to survive.

Separation does not revoke the will provisions unless there is a separation agreement.

Question 7

Alteration: amount of the gift

Answer 7

A testator:

(1) cannot increase a gift to a beneficiary by canceling words in her will, but
(2) she may be able to decrease the gift as long as:
(a) the alteration is made to the existing language of the will
(b) rather than through the addition of new language.

Question 8

Holographic wills

Answer 8

A holographic will can be altered or revoked in whole or in part by holographic changes. If under the UPC, the holographic changes must be signed.

Question 9

Revival: republication

Answer 9

Revocation of a later will or codicil that revokes the original will revives the original will if there is proof that the testator intended to revive the original will.

If the later will or codicil is revoked by physical act, extrinsic evidence of testator’s intent to revive the original will is admissible.

Question 10

Revival: dependent relative revocation (“DRR”)

Answer 10

The doctrine will allow a court to revive a revoked will when the testator revoked the will by subsequent instrument or physical act under a mistaken belief of law or fact.

It must be shown that the testator would not have revoked the original will but for the mistaken belief.