Revocation Flashcards
REVOCATION OF WILLS
A person with testamentary capacity may revoke their will at any time prior to death. A will may be revoked by operation of law, by subsequent instrument, or by physical act. Even a will that the testator has contractually agreed not to revoke may be revoked, but the beneficiaries may then have a breach of contract action against the estate.
REVOCATION BY OPERATION OF LAW
Marriage Following Execution of Will
In most states, marriage following execution of a will has no effect on the earlier will. In some states and under the UPC, however, the new spouse takes an intestate share as an “omitted spouse” unless:
* The will makes provision for the new spouse
* The omission was intentional, or
* The will was made in contemplation of the marriage
Divorce or Annulment Revokes Provisions in Favor
of Former Spouse
In most states, divorce or annulment following execution of a will revokes all gifts and fiduciary appointments in favor of the former spouse. The will remains valid and is read as if the ex-spouse predeceased the testator. The UPC and some non-UPC states extend the application of the rule to provisions in favor of the former spouse’s
relatives who are not relatives of the testator. The divorce must be final. If the parties remarry, the revocation does not occur.
REVOCATION BY PHYSICAL ACT
Under a typical statute, a will or codicil can be revoked by burning, tearing, canceling, or obliterating a material portion of the will with the intent to revoke.
Intent to Revoke
The testator must have the intent to revoke, and the intent must be concurrent with the act. If the will is destroyed accidentally or by mistake, no revocation occurs.
Proxy Revocation
The testator may direct someone else to destroy or cancel the will, but under the law of most states, the physical act must be done at the testator’s request and in the testator’s presence
Partial Revocation
Most statutes authorize partial revocation by physical act if there is sufficient evidence that the testator made the changes. Extrinsic evidence is admissible to determine whether a partial or total revocation
was intended.
Effect of Revocation on Other Testamentary
Instruments
The revocation of a will revokes all codicils to it, but revocation of a codicil to a will does not revoke the entire will. When a will has been executed in duplicate, an act of revocation done to either copy revokes the will unless there is evidence that the testator destroyed one copy to prevent confusion realizing that there can be only one “last” will.
REVOCATION BY WRITTEN INSTRUMENT
All or part of a will may be revoked or altered by a subsequent instrument that is executed with the same formalities as a will.
Revocation by Inconsistency
If the new instrument completely disposes of the testator’s property, the old will is completely revoked by inconsistency. If the new instrument partially disposes of the testator’s property, the old will is
revoked only to the extent of the inconsistent provisions
