Decedents' Estates February 2005 Flashcards
(5 cards)
Summary
Testator’s 1994 will was revoked by physical destruction even though only one of the two executed copies was physically destroyed because in doing so Testator intended to revoke the 1994 will. Under the State A statute, revocation of the 1994 will revived the 1991 will. Under the 1991 will, $10,000 passed to Cousin because the handwritten cancellation of that bequest was conditioned on the effectiveness of the $100,000 bequest. However, the $100,000 bequest cannot be given effect because it was not witnessed. Furthermore, while under the common law the bequest to Sister adeems, in some states Sister is entitled to Whiteacre, the replacement property for Blackacre. If an applicant concludes that the 1994 will was not revoked because there was one remaining executed copy, Cousin and Sister take nothing.
Testator’s 1994 will was revoked by the physical destruction of one of two executed copies of that will.
All states permit the revocation of a will by physical destruction if that act is accompanied by an intent to revoke. See generally Uniform Probate Code (UPC) §2-507. If Testator had not executed the 1994 will in duplicate, there would be no question that it was revoked because the facts evidence both a physical destruction and an intent to revoke. However, the 1994 will was executed in duplicate, and the physical destruction of one copy may have been motivated either by a desire either to revoke the will or to revoke only the copy. While the matter has not been considered in all states, the prevailing view is that the revocation of one copy presumptively revokes the will. See, e.g., In re Betts’ Will, 107 N.Y.S.2d 626 (N.Y. Sur. 1951); In re Estate of Mettee, 694 P.2d 1325 (Kan. Ct. App. 1985). The proponent of the copy of the will that was not destroyed must then prove that Testator did not intend to revoke the will. Here, Testator’s statement accompanying the destruction of one copy as well as the other surrounding facts suggest that Testator intended to revoke the 1994 will for the purpose of reviving the 1991 will. Thus, Testator would not have intended the other copy of the 1994 will to remain in effect.
Under the State A statute, the 1991 will was revived by the revocation of the 1994 will because there is no evidence that Testator did not intend a revival of the earlier will.
The State A statute provides that “the revocation of a will that revoked an earlier will revives the earlier will in the absence of a contrary intention.” Here, the facts support the conclusion that Testator, by revoking the 1994 will, intended to revive the 1991 will. In particular, when revoking the 1994 will, Testator made reference to the fact that by revoking the 1994 will Cousin would be taken care of. That result would only be true if the 1991 will were revived. Given that intent and the statutory directive, the 1991 will is revived.
Under the doctrine of dependent relative revocation, Cousin is entitled to $10,000. Cousin is not entitled to $100,000 because that intended bequest was made by an unattested act.
On the assumption that the 1991 will was revived, the question arises whether Cousin takes $100,000 as Testator likely intended, $10,000 under the doctrine of dependent relative revocation, or nothing because the typewritten bequest to Cousin was revoked by cancellation.
While Testator may well have intended Cousin to take $100,000 as evidenced by the handwriting on the will and the statement accompanying the revocation of the 1994 will, since State A does not permit holographic wills, that writing cannot be given effect as a valid will or codicil because it was not witnessed. While the facts do not state what the State A statute requires for execution formalities, all states minimally require two witnesses to create a valid will unless they permit holographic wills.
Given that Cousin cannot take the $100,000, the issue arises whether Testator’s scratching out of the $10,000 bequest to Cousin results in the revocation of that bequest under the typical revocation statute.
Under the doctrine of dependent relative revocation, the physical revocation of a bequest can be ignored if evidence exists to suggest that the testator revoked that bequest on the mistaken assumption that some other bequest would be effective. See generally William M. McGovern & Sheldon F. Kurtz, WILLS, TRUSTS AND ESTATES § 5.3 (2d ed. 2001). Such evidence appears here not only from the fact that immediately above the scratching out of the bequest appeared the words of the greater, albeit ineffective, bequest, but also from the statements Testator made to his neighbor regarding Cousin when the 1994 will was revoked. If the doctrine does not apply, however, then Cousin takes nothing because the $100,000 is ineffective as a bequest and the $10,000 bequest was revoked by cancellation.
Under the common law, the bequest to Sister adeemed, although some states have statutes substituting the new home for the home that was sold.
An ademption of a bequest occurs when the subject of a specific devise has been sold by the testator between the time the will was executed and the time the testator dies. See generally McGovern & Kurtz, supra, §8.1 (2d ed. 2001);In re Estate of Brown, 922 S.W.2d 605 (Tex. App. 1996) (devise of family home at specified address adeemed where home at time will was signed was not the home at time of testator’s death). Thetheory behind ademption is that a testator, knowing of the disposition of the specifically devised property, could execute a new will to take account of that disposition if the testator wanted some substitute bequest to pass to the beneficiary. Absent theexecution of a new will, Testator presumably does not intend the beneficiary to take any substituted property.
Some states, however, have adopted statutes that substitute so-called replacement property for the specific property disposed of by the testator. For example, §2-606 of the Uniform Probate Code (UPC) provides that a specific devisee (here, Sister) is entitled to any property acquired by a testator as “replacement property” for the property that the testator sold. The facts support the conclusionthat Whiteacre was acquired by Testator as a substitute for Blackacre. Thus, under the UPC, or a similar statute, Sister would be entitled to Whiteacre. Absent such a statute, Sister would be entitled to nothing under the common law.
In the absence of a statute, a court might also reach the same result by noting that the will reflects the intent to devise Sister the family home, arguably without regard to whether the family home was Blackacre or Whiteacre.
