Wills - Revocation of Wills

Question 1

What does it take to revoke a will?

Answer 1

A will can be revoked by:

(1) a subsequent testamentary instrument, executed with appropriate formalities; OR
(2) by a revocatory act on the original will itself (burning, tearing, destrorying) OR [Must touch or deface words of the will]
(3) a subsequent testamentary instrument that revokes a previous will by inconsistency.

Must be performed with intent and purpose of revoking all or part of the will or performed by another person at the testator’s direction in his conscious presence. (Proxy Revocation)

Question 2

How can one prove existence of a will if its destroyed/lost? [Proof of lost Wills Statute]

Answer 2

(1) Proof of due execution (testimony of one attesting witness or “other evidence” of due executing.)
(2) Cause of Will’s nonproduction must be proved (Must overcome presumption of revocation)
(3) Proof of the Will’s contents (i.e. a copy) - Oral testimony must be “strong, positive, and free of doubt.

Question 3

What are the important presumptions regarding revocation?

Answer 3

(1) Where a will, last seen in T’s possession or control, is not found after death, it is presumed revoked by physical act.
(2) Where found after T’s death multilated, its presumed that T did the mutilating.

However, No presumption if last seen in possession of someone adversely affected by its consent OR Evidence is admissible to rebut presumption of revocation when it can be found.

Note: Revocation of a codicil does not revoke will, only the codicil and part modified is restored.

Question 4

Can a revoked will be revived?

Answer 4

MA: Not revived unless

(1) the will is still in existence (not destroyed) AND
(2) Evidence from the circumstances or T’s contemporary or subsequent statement that T intended to revive the earlier will.

Majority Rule: No revival unless
(1) Re-executed by T with two W’s OR

(2) Republication by codicil applies

Question 5

What is “dependent relative revocation”?

Answer 5

DRR permits a revocation to be disregarded when the act of revocation was premised upon/dependent upon, a mistake of law or fact as to the validity of another disposition.

Effect would be to disregard the revocation Will #1.

DRR should not be applied unless the distribution that result from disregarding the revocation comes closer to doing what the testator tried (but failed) to than an intestate distribution.

Question 6

What is the effect of changes on face of the will after it has been executed?

Answer 6

• Partial revocations by physical are valid in MA.
• Words added to a will after it has been signed and witnessed are DISREGARD b/c they weren’t signed and witnessed.

If changed made before signing a will then OK. Must be established by proof.