Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Wills > Revocation > Flashcards

Revocation Flashcards

1
Q

Revocation can happen..

A

2 ways:

(1) Through operation of law
(2) Through the actions of the testator themselves

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Operation of Law revocation

A
  • Happens whether they want revoked or not

- Mainly marriage and some jurisdictions, dissolution of marriage

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

What happens if revoked at marriage and they don’t make a new one?

A

Intestacy

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

In which provinces does marriage not revoke a will?

A

Quebec, BC, Alberta

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Davies v Collins

A

-Multiple jurisdictions

Facts: deceased domicile in NS, lived with common law wife in Trinidad for many years and died there. Deathbed marriage. Had will but hadn’t changed since first marriage.

Ratio: Court ruled after looking at the laws of conflicts that it was the domicile at the time of marriage that determined revocation—not where you get married, die, or had will drafted

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Jurisdiction for rule of whether or not marriage revokes

A

Testators domicile (permanent residence) at the time of marriage is what determines it

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

What if you are beneficiary of will revoked by marriage in NB?

A

Can come forward even if it is intestacy and so long as doesn’t cause someone getting it under intestacy undue detriment you may still get it.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Can will stand in NB after marriage?

A

If not still married/ no issue of the marriage then old will can still stand

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

What does revocation upon marriage depend on?

A

Whether or not the marriage was valid

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

2 kinds of marriage that may be deemed invalid

A

(1) Void

(2) Voidable

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Void marriage

A

Illegal from the get go, never valid.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Examples of void marriages

A

Senial, drunk, on drugs, can’t remember what happened, people who marry family, people already married, up until 2005 same sex

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Voidable marriage

A

Marriages that have some kind of flaw to them and could be avoided and deemed invalid. If not avoided they remain valid.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Examples of voidable marriages

A

Underage marriages, unconsummated marriages

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

How do you void a voidable marriage?

A

Has to be done by one of the parties to the marriage and can only be done while they are both still alive

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Who can challenge legitimacy of a marriage?

A

Void=Anyone with a remote financial interest of an estate

Voidable= valid unless avoided, only way to do that is one of the two parties while both still alive

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

What if there is no challenge to marriage?

A

Valid marriage and triggers these clauses

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Capacity for marriage

A

Test for testamentary capacity much higher than that for marriage.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Banton v Banton

A

Facts: old man (89) married second wife (31) under suspicious circumstances (waitress from his retirement home, he was very sick, married in her apt, will left everything to her)

Ratio: striking down new will does not revive old will, while he did not have capacity for will and there was undue influence. Did have capacity to marry, revoked old one.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Infirm Persons Act in NB

A

Court has unique power to make, amend, and revoke wills for mentally incompetent persons

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Spence v Spence

A

Facts: Had pre-nup saying husband couldn’t make any claims against her estate including intestacy. She did not make new will after marrying.

Ratio: Pre-nup doesn’t preclude the operation of the marriage revocation provision- intestacy still operates

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

What stops the operation of revocation by marriage?

A

S.16, wills made in contemplation of marriage do not automatically revoke

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

Re Coleman

A

Facts: man made will before married and devised gifts “to my fiancé”

Ratio: shows how court determines if made in contemplation of marriage. Court says it has to be express, has to say “this is made in contemplation of marriage”. Can have implied contemplation of marriage if meet rules.

24
Q

Implied contemplation of marriage rules from Re Coleman

A

(1) Language you use to future spouse (have to call them fiancé or something like that, not wife)
(2) Fiance must be sufficiently identified
(3) Every disposition in the will except for appointment of an estate trustee, wardship, POA, etc. has to mention fiance (can’t just leave a few gifts)

25
Q

Spousal elections

A

Situation where a spouse in these scenarios can elect to still take under it

26
Q

Partial revocation by change in circumstances

A

A will is not revoked by presumption of intention to revoke it on the ground on a change of circumstance. If make will and circumstances its based on changed not automatically revoked.

27
Q

In ONT circumstance change

A

Revoked on divorce

28
Q

Will revoked by act of testator

A

(1) another will made in accordance with the provisions of the act
(2) A writing declaring intention to revoke governing the making of a will
(3) Burning, tearing, or otherwise destroying it by testator or someone by testators direction in presence of testator

29
Q

Morrison v Owen

A

Facts: handwritten note saying “please follow will x and revoke all others” and signed

Ratio: holographic will revoked all others

30
Q

What is not an automatic revoke?

A

Not all subsequent wills will be found to revoke precious wills even if they have a revocation clause

31
Q

Presence/ absence of revocation clause

A

Not determinative of whether previous wills are actually revoked or not. Court can find revocation whether or not its there. Can be persuasive.

32
Q

If no revocation clause

A

Will can still be deemed revoked if its clear by the new will and surrounding circumstances that the intention of the testator was to revoke previous wills

33
Q

What if new will doesn’t contain an express revocation clause but doesn’t deal with all property

A

Depending on evidence either can be found to revoke or could be read with previous will

34
Q

Generally a subsequent will revokes previous:

A

(1) If contains express revocation clause that is either redundant or persuasive when not clear from contents
(2) If no express revocation can go either way
(3) In rare instances a subsequent will can contain express revocation and court will still probate

35
Q

Re Phelan

A

Facts: used pre-printed forms and put each item on a separate form, each form had express revocation

Ratio: court said obvious he didn’t understand, probated everything (RARE)

36
Q

Insurance policies and other beneficiaries

A

A subsequent will only revokes the external designation if it does so in a manner that sufficiently identifies the policy in question in a new will

37
Q

Ways to revoke external policy designation

A

(1) Clear and specific designation

(2) If makes new designation specific enough to provide executors with detailed instructions as to do with detailed plan

38
Q

Duplicate wills

A
  • When execute a bunch of copies just revokes previous copy.
  • Photo copies are the way to go.
  • Possible to make more than one valid copy but have to be very careful and say “this does not revoke”
39
Q

Revoke by a writing

A

A will or part of a will can be revoked by a writing made in accordance with an act (codicil)

40
Q

Codicil

A
  • Baby will that supplements, changes, or adds something to an otherwise valid will but it itself is not a new will.
  • Can revoke will or part thereof
41
Q

What does Codicil have to be to be probated on its own?

A

Needs to contain sufficient instruction. Need to conform to regular validity requirements.

42
Q

Re Davis

A

-About whether codicil revokes gift or just implied

Facts: testator was farmer left all land to D, bought new land gave to daughter then grandson through codicil, grandson pre-deceased gift failed

Ratio: no implied or express revocation from wording of either,

43
Q

Physically Destroying Wills- Need two things

A

1) Actual destruction
2) Have to have intention to revoke (Amino Revocandi)
* these need to coincide, at the same time

44
Q

What if only partial destruction?

A

There is a presumption that you intended to destroy it. The onus to prove otherwise is on the person attempting to probate the will.

45
Q

Portions of the will are destroyed and illegible

A

Portions still legible can be probated. However, if the signature of the T is cut off, this revokes the will. It is the same as destroying the whole thing.

46
Q

T merely draws a line through dispositions, and writes on back “all these are revoked”, and keeps the will

A

Will not revoked

47
Q

More than one official copy, and the T destroys his official copy

A

Court will find that the will has been revoked by destruction, even though another official copy exists. However, if a testator destroys the photocopy of a will, this does not count as revocation.

48
Q

A will destroyed by T under a mistake of fact, or law

A

Not revoked

49
Q

A will destroyed by accident

A

Not revoked

50
Q

Leonard v Leonard

A

Facts: valid original, 5 pages. First 2 pages destroyed and replaced, attested by same witnesses but contained express revocation to revoke subsequent wills.

Ratio: Court reasoned that if the first two pages were destroyed, it would have the effect of leaving the last three pages unintelligible, thus the act of the destroying the first two pages showed an intent to revoke the last three pages. Even though two new pages were attested and signed, they were incapable of making a will, because the dispositions were in the last three pages, which were revoked.

51
Q

Does physical destruction of will revoke codicils?

A

Does not mean codicils properly executed afterwards were destroyed

52
Q

Rebuttable presumption for destruction

A

That if the only official copy of a will can be last traced to the testators hands and cannot be found after death its presumed to be destroy (rebuttable)

53
Q

Revocation can fail…

A

In the same reasons a will can fail (ex: undue influence)

54
Q

Destruction by another

A

Will can be destroyed by person other than the testator but at the testator’s direction and in the testators presence

55
Q

Delack, Hickey and Camp v Newton

A

Facts: Sister destroyed not in her presence

Ratio: not revoked

56
Q

Re Krushnel Estate

A

Facts: testator wrote holographic will and gave to Ed talking about his death, Ed ripped up scared T would kill himself

Ratio: valid will, destruction not at direction of testator

57
Q

Gill v Gill

A

Facts: T’s wife tore up will angrily when he was drunk, did not make a new one

Ratio: not revoked, even if he said go ahead didn’t have capacity. Cannot ratify destruction at a separate time.

Wills (26 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions