Revocation of Wills

Question 1

How can a will be revoked?

Answer 1

(1) subsequent testamentary instrument; or

2) by physical act (with intent to revoke

Question 2

Sufficient physical acts for revocation

Answer 2

• burning;
• tearing;
• cutting;
• cancelling;
• obliterating;
• other act of mutilation.

Question 3

Express revocation

Answer 3

Express revocation language in will- “i hereby revoke all wills heretofore made by me.”

Question 4

Revocation by implication

Answer 4

New will that did not expressly revoke prior will

to the extent possible, read the two instruments together

• 2nd will be treated as codicil & revokes will to the extent there are inconsistent provisions
• unless wills are wholly inconsistent, then the first will is revoked by implication

Question 5

Revocation by physical act

Answer 5

Physical act must be:

(1) at the testator’s request;
(2) in the testator’s presence; AND
(3) witnessed by at least 2 witnesses.

Question 6

Presumptions regarding revocation of wills- Will was last seen with T but is not found after death

Answer 6

Presumption: T revoked the will

Question 7

Presumptions regarding Revocation- will was last seen with T and is found in a damaged condition after T’s death

Answer 7

Presumption- T is the one who did the physical act of revocation

Question 8

Partial revocation by physical act

Answer 8

Not recognized in NY

Question 9

Revival of a will

Answer 9

Revocation does not revive prior will

Only revived if:

(1) re-execution; OR
(2) Doctrine of “republication by codicil”: T validly executes a codicil to the first

basically, need a validly executed document to make a change

Question 10

Dependent Relative Revocation- what is it?

Answer 10

DRR permits a revocation of a later Will to be disregarded

Question 11

Dependent Relative Revocation- requirements

Answer 11

(1) T’s revocation must be premised upon a mistake of law (thinking that revocation of a later will validates a prior will)
(2) the disposition that results from disregarding the revocation of the later Will must come close to the dispositions T intended when he attempted to revive the earlier Will.

Argue both sides, but probably unlikely!

Question 12

“Lost Wills” Statute- when does it apply

Answer 12

Used in 2 situations:

(1) DRR; and
(2) truly “lost” wills

Question 13

Lost wills statute- what must proponent prove?

Answer 13

(1) the lost or later will was duly executed;
(2) the lost or later will was not revoked
- must overcome presumption of revocation; OR
- prove that the revocation should be disregarded under DRR
(3) the Will’s provisions are: “clearly and distinctly proven by each of at least two credible witnesses, or by a copy or draft of the Will proved to be true and complete.”