Ch 3: Revocation of a Will

Question 1

When may a testator revoke his will? (T)

Answer 1

A testator with testamentary capacity retains the ability to revoke his will at any time before his death, even if he executed a valid contract not to revoke the will.

Question 2

What happens to a will that is properly revoked? (T)

Answer 2

A properly revoked will must be denied probate, but interested parties may bring an action for breach of contract against the decedent’s estate if revocation was in breach of a contract not to revoke.

Question 3

How may a will be revoked wholly or partially? (T)

Answer 3

A will may be revoked wholly or partially in three ways: (1) by subsequent writings, (2) by physical destruction of the will, or (3) by operation of law.

Question 4

Do oral revocations have any effect on the will? (T)

Answer 4

No. An attempt to orally revoke a will has no effect on the will.

Question 5

How can a testator expressly revoke a will with a subsequent instrument? (T)

Answer 5

A testator can expressly revoke a will by a subsequent writing, a later will, or a codicil.

Question 6

Under the UPC, how must a a subsequent writing expressing the intent to revoke qualify? (T)

Answer 6

Under the UPC, a subsequent writing expressing the intent to revoke must qualify as a valid holographic or attested will.

Question 7

How can revocation be conceived? (T)

Answer 7

The revocation can be express (i.e., the subsequent instrument contains a provision revoking the prior instrument) or implied by the terms of the subsequent instrument.

Question 8

What happens if there is an inconsistency between the will and any codicils? (T)

Answer 8

If there are inconsistencies, then the later document controls and revokes the prior provisions that are inconsistent.

Question 9

What happens if a later will contains a residuary clause? (T)

Answer 9

If a later will contains a residuary clause (e.g., “I leave all remaining assets of my estate to my brother”), then it revokes the first will by inconsistency.

Question 10

On the exam, how can you distinguish a codicil to an existing will from a new will? (T)

Answer 10

If the subsequent instrument has a residuary clause, then it is likely a new will. If the subsequent instrument does not have a residuary clause but the first instrument does, then the subsequent instrument is likely a codicil.

Question 11

How can a testator destroy a will with intent to revoke? (T)

Answer 11

A will may be revoked by burning any portion of it, or by canceling, tearing, obliterating, or destroying a material portion of the will with the intent to revoke it. Both the act and a simultaneous intent to revoke must be proven to yield a valid revocation.

Question 12

What is the rule regarding defacement of the language required for destroying a will with the intent to revoke? (T)

Answer 12

Most jurisdictions require defacement of the language of the will (i.e., at least some of the language must be crossed out, including the signature).

Question 13

What is the UPC rule regarding destruction with intent to revoke? (T)

Answer 13

The UPC rejects the majority rule and requires that the destructive act merely affect some part of the will.

Question 14

If a will once-known to exist cannot be found at the testator’s death, or is found mutilated, then what is the status of the will? (T)

Answer 14

If a will once-known to exist cannot be found at the testator’s death, or is found mutilated, then there is a rebuttable presumption of revocation.

Question 15

If a duplicate original will is found, what happens to the rebuttable presumption of revocation? (T)

Answer 15

The presumption is inapplicable if a duplicate original is found.

Question 16

What kind of evidence is permitted to rebut the presumption of revocation? (T)

Answer 16

Extrinsic evidence is permitted to rebut the presumption.

Question 17

Does the attorney-client privilege apply to a lawyer’s testimony concerning the contents of a will? (T)

Answer 17

No. The attorney-client privilege does not apply to a lawyer’s testimony concerning the contents of a will.

Question 18

What is the prevailing view regarding only one copy of the will having been destroyed? (T)

Answer 18

The prevailing view is that the effective revocation of the original or a duplicate original presumptively revokes all other copies of the will, but that destruction of an unexecuted copy does not revoke other copies.

Question 19

How can a third party revoke a will on a testator’s behalf? (T)

Answer 19

A third party can revoke on the testator’s behalf as long as the revocation is:

i) At the testator’s direction; and

ii) In the testator’s conscious presence.

Ex: If a testator calls his attorney requesting that she tear up his will, then the revocation is not valid because it was not done in the testator’s conscious presence.

Question 20

How is a will interpreted after a divorce? (T)

Answer 20

In most states, divorce revokes all will provisions in favor of the former spouse, unless it can be shown that the testator intended for the will to survive.

Question 21

Some states divorce?

Answer 21

In some states, divorce revokes a will provision for the former spouse only if the divorce is accompanied by a property settlement agreement. If a divorced couple remarries before the testator dies, then the will provisions relating to the former spouse or domestic partner are revived.

Question 22

How does the UPC view wills after a divorce? (T)

Answer 22

The UPC takes a broader approach than many jurisdictions and revokes provisions containing devises to the relatives of the ex-spouse. The UPC also applies the revocation by operation of law doctrine to will substitutes. However, because of federal express preemption, divorce will not automatically revoke the designation of a spouse as beneficiary of an employee benefit plan governed by the Employee Retirement Income Security Act (ERISA).

Question 23

What effect does separation have on a will? (T)

Answer 23

Separation without divorce does not affect the rights of the spouse or domestic partner unless a complete property settlement is in place.

Question 24

What is partial revocation? (T)

Answer 24

Most jurisdictions and the UPC permit partial revocation to revoke a provision of a will. Most jurisdictions provide that if the revoked gift falls outside of the residuary, it is not given effect until re-execution (signed again) or republication (new document) of the will.

Question 25

What does the UPC say about partial revocation? (T)

Answer 25

The UPC provides that partial revocation is permissible regardless of the effect, even if it increases a gift outside of the residuary clause.

Question 26

May a testator increase a gift to a beneficiary by cancelling words in his attested will? (T)

Answer 26

No. A testator cannot increase a gift to a beneficiary by canceling words in his attested will but may decrease a gift by doing so.

Question 27

Do holographic wills require a new signature to be altered or revoked? (T)

Answer 27

No. A holographic will can be altered or revoked in whole or in part by holographic changes and without a new signature. However, it depends on the state.

Question 28

If a subsequent holographic will disposes of part of an estate already disposed of in an attested will (e.g., a witnessed, typewritten will), what will happen? (T)

Answer 28

If a subsequent holographic will disposes of part of an estate already disposed of in an attested will (e.g., a witnessed, typewritten will), then the attested will is revoked only to the extent that it is inconsistent with the later holographic will.

Question 29

Regarding lost wills, what are duplicate originals? (T)

Answer 29

Duplicate originals are two copies of the same will executed in the same manner, each complying with the same formalities.

Question 30

May duplicate originals be admitted to probate? (T)

Answer 30

Yes. A duplicate original may be admitted to probate.

Question 31

Can a copy of a will, such as a photocopy, be admitted to probate? (T)

Answer 31

No. A copy of a will, such as a photocopy, cannot be admitted to probate. But a copy may be used as proof of testamentary intent in the case of a lost or missing will.

Question 32

Regarding lost wills, what happens if a will cannot be found? (T)

Answer 32

If a will cannot be found, then the burden is on the proponent of the will's existence 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 adequate.

Question 33

What happens if there is proof that a will was destroyed, but there is no evidence that the testator intended to revoke it? (T)

Answer 33

If there is proof that a will was destroyed, but there is no evidence that the testator intended to revoke it, then the will can still be probated if there is clear and convincing evidence of the lack of intent to revoke and of the will's contents.

Question 34

What is the rule regarding revocation of codicils? (T)

Answer 34

Revocation of a will revokes all codicils to it. By contrast, revocation of a codicil does not revoke a will, but rather revives it.

Question 35

What is the common law rule (only followed in a few states) regarding revival of a will? (T)

Answer 35

At common law, followed in only a few states, the revocation of a will or codicil that revoked another will automatically revived the original will.

Question 36

What is the no-revival approach to wills? (T)

Answer 36

Many states follow the no-revival approach. Under this approach, the second will is treated as two legal instruments, each with its own effective date. The second will functions as (1) a revoking instrument that is effective upon its execution and also (2) a dispositive instrument effective upon the testator’s death. Therefore, even if the second will is revoked before the testator’s death, the revocation of the first will remains in effect.

Question 37

What is the modern UPC approach to will revival/republication? (T)

Answer 37

The modern approach adopted by the UPC focuses on the testator’s intent and applies a hybrid approach that depends on two considerations: i) Whether the second will is revoked by act or by another, later will; and ii) If the second will is revoked by an act, whether the first will was wholly or partially revoked by the second will.

Question 38

Under the modern UPC approach, what happens if the second will is revoked by a new will? (T)

Answer 38

If the second will is revoked by another new will, then the previously revoked will (or its revoked parts if it was only partially revoked by the second will) is only revived if the terms of the new will show that the testator intended the previous will to take effect. In other words, the court will not consider any extrinsic evidence (e.g., oral statements by the testator) in determining whether the testator intended to revive the first will. The intent must be stated in the new will.

Question 39

Under the modern UPC approach, what happens if the second will is revoked by a physical act? (T)

Answer 39

If the second will is revoked by a physical act (e.g., burning, tearing), the burden of establishing the testator’s intent depends on whether the first will was wholly or partially revoked by the second will.

Question 40

Under the modern UPC approach, what happens if the second will wholly revoked the first will? (T)

Answer 40

If the second will wholly revoked the first will, then the court will presume that the testator did not intend to revive the first will, and the burden is placed on the proponent of the first will to prove that the testator intended to revive that will.

Question 41

Under the modern UPC approach, what happens if the second will partially revoked the first will? (T)

Answer 41

If the second will partially revoked the first will, then the court presumes that the testator intended to revive the revoked parts of the first will, and those portions of the first will are revived unless the challenger of the first will establishes that the testator did not intend them to be revived.

Question 42

What is the equitable doctrine of of dependent relative revocation (“DRR”)? (T)

Answer 42

DRR allows a court to disregard a testator’s revocation that was based on a mistake of law or fact and would not have been made otherwise.

Question 43

Typically, when do courts apply the DRR doctrine? (T)

Answer 43

Typically, courts apply this doctrine only when (1) an alternative disposition stated in a subsequent document fails, or (2) the mistake causing the document’s revocation is reiterated in the revoking instrument. Ex: T creates a second will and then writes on the first will, “I am revoking this will because I made a new will.” T did not realize that the second will was not valid. The revocation of the first will is set aside, and the first will is given effect.

Question 44

On the exam, if you see an otherwise valid revocation based on a mistake (whether of fact or law) what should you do? (T)

Answer 44

If you see an otherwise valid revocation based on a mistake (whether of fact or law), begin your analysis by stating the DRR rule.