Revocation Flashcards
(20 cards)
What is a will in duplicate?
When the T and the witnesses sign two copies of the will.
Hypo: In 2011, T property executed a will in duplicate giving all property to her children. In 2013 she wrote “VOID” on one of those copies of the 2011 will and drew many vertical lines across front of the one page document. Was the will revoked?
Yes, her act was sufficient to revoke the executed copy, and what happens to one will happens to all copies. Therefore, she had the necessary intent and the physical act was sufficient to revoke.
What is necessary to revoke a will by physical act?
- Intent to revoke;
2. A physical act.
What is the best way to revoke a will?
Expressly.
If T writes across the back of a will “VOID” is the will revoked?
Most states rule: No revocation. Cancellations must cross some of the language of the will.
UPC: Will is cancelled because act can appear anywhere on the will.
What are the two presumptions for the revocation of a will?
- Will in T’s possession from time of execution until death and found in mutilated condition after T’s death is presumed that T did the mutilating with the intent to revoke.
- Will last seen in T’s possession and control not found after T’s death. Reason it can’t be found is that T destroyed it with the intent to revoke.
Can a will be revoked by proxy?
Yes. It must be done by another person and must be:
- done at T’s direction; and
- done in T’s presence.
What is a “Lost Wills” statute?
In most states, lost wills requires formal proceedings where proponents have burden of proving the contents of a will that cannot be located. Can be through a copy of the will, plus at least one witness or other clear and convincing evidence.
Can an attorney be sued for messing up revocation of a will or the execution of a will?
Yes. According to Lucas v. Hamm, attorneys can be sued for negligence for messing up wills.
What is a codicil to a will? and What is necessary for it to be binding?
Codicil is an amendment to a will and it requires the same formalities of a will to be binding.
Hypo: T’s 2007 will leaves Blackacre to X, her diamond ring to Y and residue to Z. T’s 2010 codicil leaves $5,000 to Y and her diamond ring to M. Codicil does not expressly revoke earlier will. Who takes what?
If a codicil does not make reference to a will but contains inconsistent provisions, to the extent possible the codicile and the will should be read together. But if there are inconsistent provisions, the later documents controls and revokes all inconsistencies in the prior will. Therefore:
- M gets the diamond ring;
- Y’s gift of the ring is revoked and takes $5,000 instead;
- X gets blackacre;
- Z gets the residue.
Which will controls when there are two wills and the second does not revoke the first?
- If the second will has no residuary clause, it is presumptively a codicil to the first and there is an implied revocation only to the extent of the inconsistencies.
- If the second will has a residuary clause, it revokes the first will in its entirely due to the inconsistency.
Does a revocation of a will revoke all the codicils to the will?
Does a revocation of a codicil to a will revoke the entire will?
- Revocation of a will will revoke all the codicils to the will;
- Revocation of a codicil to a will does not revoke the entirety of the will.
What is the effect of divorce on a will?
Divorce following a will revokes all provisions in favor of the ex-spouse; construe as though the ex-spouse has died.
What is the effect of a separation on the spouses benefits in the will?
What about a separation with a property settlement?
A separation without a divorce does not have an effect on the other spouses rights under the will. However, if a property settlement was reached, then the other party has waived their rights under the will.
What is the Dependent Relative Revocation (DRR) rule?
DRR allows the disregarding of a revocation which is based on, induced by, premised on a mistake of law or fact if the court is satisfied that, but for the mistake, T never would have made the revocation.
If the court is pursuaded by the Dependent Relative Revocation rule that T did not intend for the revocation to occur, what can it do?
(1) Disregard a revocation (2) because it was based on a mistake of law (3) provided the court things T would not have revoked the bequest but for the mistake.
When does the Dependent Relative Revocation rule apply?
When (1) an original gift; (2) was lined through or removed; (3) with a bigger gift than previously given is written in.
If, however, the gift is smaller, then the DRR will not apply.
Hypo: T’s typewritten will made a bequest of $10,000 to his friend X. Subsequent tot he will’s execution, T drew a line through the $10,000 figure and wrote in above it $15,000. T then signed his name in the margin opposite the change. What is the outcome?
The $10,000 bequest to X has been revoked by a physical act. However, because T did not either re-execute the will or re-publication of the will by codicile, the $15,000 bequest is invalid.
Therefore, The court can use the Dependent Relative Revocation rule to undo the revocation and allow X to receive the $10,000 bequest.
When can a will be revived?
Some States rule: Once a will is revoked it must be re-executed or re-published to be revived.
UPC and remaining states rule: A will cannot automatically revived. However, an original will which has been superseded by a new will can be revived if: (1) the will still exists; (2) T wanted/intended to revive the original will; and (3) the superseding will was revoked by physical act.
