Revocation of a Will Flashcards
Revocation by physical act
A will or part of a will can be revoked by a physical act of the testator or another person in the testator’s presence and at the testator’s direction. The physical act can include the will being burned, torn, canceled, destroyed, or obliterated with the intent to revoke it.
Presumed Revoked
It is presumed revoked that the testator destroyed the will with the intent to revoke it if the testator’s will was last in the testator’s possession and he was competent until death, and if neither the will nor a duplicate can be found after the testator’s death.
Cross out of one of two beneficiaries
Where there is a devise to A and devisee B and B has been crossed out, B’s portion goes to the will residue and not to A.
Revocation by a Subsequent Will
A will or part of a will is revoked by a subsequent will, which either expressly revokes the previous will or part of it, or impliedly revokes the previous will or part of it through inconsistencies.
Revocation by Operation of Law
A will is revoked by operation of law to accommodate an omitted spouse or subsequent domestic partner, or to remove all devises to a previous spouse after divorce or annulment.
Omitted Child or Spouse
An omitted child or spouse will receive an intestate share if they were born or married after the will was made, unless they were
- Intentionally omitted as indicated on the face of the will
- Otherwise provided for outside the will with an intent to do so in lieu of the will, or
- The decedent had one or more children and devised substantially all the estate to the other parent of the omitted child.
Dependent Relative Revocation (DRR)
Courts will apply the doctrine of dependent relative revocation where the testator revokes his first will (or part of it) on the mistaken belief that a substantially similar second will or codicil would be effective, but it is not effective at death, and but for the mistake testator would not have revoked the will. The court will regard the revocation as made by the subsequent will and allow the first will to take effect.
Invalid second will
If the second will is invalid due to fraud, duress, menace, undue influence, or ineffective execution, then the revocation of the first will was never valid so DRR is not applicable.
Effect of DRR
DRR only revokes the most recently revoked instrument, such that if a second will revoked a first will and then a third will revoked the second will, the first will would still be revoked unless it is clear from the third will that the testator intended for the first will to take effect.
Revival of Will
When a will is revoked by a physical act or subsequent will, and then the subsequent will is revoked as well, the first will is revived if the testator intends for it to be revived. Extrinsic evidence is permitted when revocation is performed by a physical act.
