II. Revocation

Question 1

Revocation of wills

Answer 1

(1) Express Revocation
(2) Revocation by Physical Act
(3) Revocation by Another Person (=Revocation by Proxy)
(4) Revocation by Inconsistency
(5) Impact of Divorce
(6) Partial Revocation

(7) Revival

Question 2

I. Express Revocation

Answer 2

by a subsequent written will with the language, “I revoke ALL earlier wills. This is my last and final will.”

Question 3

II. Revocation by Physical Act

Answer 3

(1) Requirements:
① Intent to revoke, AND
② **Physical act **(burned/torn/canceled/ obliterated/destroyed)
(2) Sufficiency of Act: Act of revocation on ONE executed copy revokes ALL executes copies.
A. The word, “VOID/CANCELED/etc…” written on back/margin of will (Helpful in determining intent, but not critical to the outcome)
• Most states: NO revocation b/c cancellation MUST touch/cross SOME of the language of the will
• UPC: Canceled b/c act of cancellation can appear ANYWHERE on the will & does NOT have to cross the language
B. “VOID” written on face of Xerox copy – no good in any state (MUST be on the will itself)
(3) Presumptions: The will can be presumptively revoked.
A. Will in T’s possession from the time of execution until death & found in mutilated condition after T’s death
⇒ Presumption: T did mutilating w/ intent to revoke
B. Will last seen in T’s possession & control BUT not found after T’s death
⇒ Presumption: The reason it can’t be found is that T destroyed it w/ intent to revoke
C. BOTH presumptions are rebuttable → IF showing someone else had access to the will.

Question 4

III. Revocation by Another Person (=Revocation by Proxy)

Answer 4

(1) If T’s order is NEVER carried out by a 3rd person who received the order, the will is NOT revoked. (There was NO act!!!)
(2) Revocation by another person (proxy) MUST be:
① done at T’s direction, AND
② in T’s presence
(3) Lost Wills Statute: In most states, lost wills requires formal proceeding where proponents have burden of proving the contents of the lost will through
① copy + one witness, OR
② other clear & convincing proof
(4) Attorneys who bung up execution/revocation of will can be sued in negligence (malpractice) ⇒ Tort liability!

Question 5

IV. Revocation by Inconsistency (2 documents of the will are inconsistent to each other)

Answer 5

(1) Will and Codicil
① Where codicil makes NO reference to will, BUT contains slightly inconsistent provisions, to the extent possible that the will & codicil are read together ⇒ Both documents are read together
② To the extent of any inconsistent provisions ⇒ The later document (codicil) controls & revokes by inconsistency the prior will
(2) Will and Subsequent Will: Same rule applies when there are TWO wills BUT the 2nd does NOT in terms revoke the 1st:
① If the 2nd will has NO residuary clause, it’s presumptively a codicil to the 1st
>> Implied revocation ONLY to the extent of the inconsistencies involved
② If the 2nd will has a residuary clause, 2nd will revokes the 1st will in its entirety by inconsistency
★ Majority rules: Revocation of a will automatically revokes ALL codicils thereto, but NOT vice-versa.

Question 6

V. Impact of Divorce (UPC & most states)

Answer 6

(1) Divorce following a will *revokes ALL provisions* in favor of the ex-spouse.
⇒ construe the will as if the surviving spouse was dead
• If the couple had married again, the surviving spouse is back in the will
(2) Mere separation w/o divorce does NOT affect the surviving spouse’s rights under the will
• EXCEPTION: IF there were separation AND complete property settlement ⇒ treated as a waiver by the surviving spouse of her rights under the will
[NOTE: Divorce also revokes provision in T’s revocable inter vivos trust]

Question 7

VI. Partial Revocation

Answer 7

(1) Drawing a line through a bequest & signing the name in the margin opposite the change cancels the bequest
(2) The interlineations (changed bequest) CANNOT be given effect UNLESS:
① The will is re-executed OR
② The will is republished by codicil (execution of separate sheet of paper affirming the change)
(3) Dependent Relative Revocation [DRR] (Mistake Remedy Doctrine) allows us to disregard a revocation which is based on, induced by, premised on a mistake of law/fact IF the ct is satisfied that, but for the mistake, T never would have made the revocation
• If the changed amount is larger, DRR applies.
• If the changed amount is smaller, the ct will NOT undo the revocation

Question 8

VII. Revival

Answer 8

WILL-1 was revoked at the execution of WILL-2 (but NOT destroyed)
Thereafter, WILL-2 has been destroyed w/ the intent of revoking it
Question) Does revocation of WILL-2 “revive” WILL-1?
• Most statutes: NO, UNLESS WILL-1 is (1) re-executed OR (2) republished by codicils
• UPC & some other states: not automatically, but WILL-1 is revived if
① WILL-1 still exists;
② It is shown that T wanted it revived; AND
③ WILL-2 must have been revoked by physical act