Revocation of a Will Flashcards
How may a will be revoked?
- Subsequent writing
- Physical Destruction
- Operation of Law
Can you orally revoke a will?
No.
What is the UPC rule on a subsequent writing to revoke a will?
Under the UPC, a subsequent writing must:
- express the intent to revoke expressly or impliedly.
What is the rule w/ regards to inconsistencies?
To the extent possible, the will and any codicils are read together. If there are inconsistencies, the later document controls.
What are the elements for a physical destruction to revoke a will?
- Act and,
2. Simultaneous intent to revoke
What is the act that is required for a physical destruction to revoke a will?
Majority - defacement of the language - at least some part of the language and the signature.
UPC - destructive act must merely affect some part of the will.
Does the atty-client privilege apply to an attorney’s testimony about the contents of a will?
No.
When can a third party revoke a will?
1) at the testator’s DIRECTION, and,
2) in the testator’s CONSCIOUS PRESENCE
What is the impact of divorce on will provisions?
MOST STATES - divorce revokes will provisions in favor of the former spouse unless it can be shown that the testator intended for the will to survive. (UPC).
In some states, a divorce revokes a will only if it is accompanied by a property settlement agreement.
How does separation affect a will?
It does not unless a complete property settlement is in place.
Can a testator increase a gift to a beneficiary by cancelling words in a will?
No. A testator may only decrease the gift by canceling wills
Can a photocopy of a will be admitted to probate?
No it cannot be admitted to probate, but it may be used as proof of testamentary intent in the case of a lost or missing will.
Where is the burden if there is a missing will?
The burden is on the proponent of the existence of a will to prove the will’s existence by clear and convincing evidence. An attorney’s copy of an original is sufficient whereas testimony by an interested witness is not.
what is the rule on revival when a second will or a codicil is revoked?
Majority & UPC - no automatic revival of the original will, but require proof of intent to revive the original.
Dependent Relative Revocation
When a testator revokes a will based on a mistake of fact, a court may set aside that revocation.
