Revocation Flashcards
3 Ways to Revoke (Types)
- By subsequent valid testamentary instrument
- By physical act (total or partial)
- Partial revocation by operation of law (also applies to trusts)
Revocation: By subsequent valid testamentary instrument
- express (“I revoke all prior wills”)
- implied:
- total inconsistency
- partial inconsistency
Revocation: By physical act: elements
- intent to revoke (you must prove this; AND
- physical act
*Note: cross outs cannot increase devise (e.g. “to A and B” [B crossed out] results in A getting 1/2, B getting nothing, and the residue getting 1/2)
Revocation: By physical act: lost will presumption
- will last in T’s possession; AND
- cannot be found; THEN
- presumed destroyed with intent to revoke; burden on proponent
Revocation: By physical act: By third party
- presence of T; AND
- at the direction of T
Revocation: Partial revocation by operation of law: Omitted Spouse
- Omitted spouse = married after will executed
- T makes will, then gets married.
- Spouse gets T’s 1/2 CP (PLUS W’s own 1/2, so all CP) and also gets part of T’s SP (1/3 if more than 1 child or issue of child - otherwise 1/2)
- UNLESS, spouse otherwise provided for OR intentionally left out
Revocation: Partial revocation by operation of law: Omitted/Pretermitted Child
- omitted/born or became known after will
- gets intestate share unless:
- intentional (will must make evident); OR
- otherwise provided for by T outside of will; OR
- substantially all goes to other parent AND there is at least one child at execution
See special rule under abatement: omitted child/spouse abates the estate
*Note: court can deviate if necessary to effectuate the spirit of what T wanted
Revocation: Partial revocation by operation of law: Effect of Divorce
Revokes disposition in will to ex-spouse and all powers (after 1/85)
Dependent Relative Revocation: GR
Applies where T physically revokes his will on the mistaken belief that another disposition would be effective AND but for the mistake, T would not have revoked
-This means that although there was an act, the mistake effectively negates the intent to revoke. The issue is T’s intent.
Dependent Relative Revocation: Elements
- Mistaken belief induces physical revocation
- T would not have made revocation but for mistake
- Effect: disregard the revocation
- if DRR fails, use intestate succession
*Court’s discretion: either gift stays as originally written, or gift is completely revoked; CANNOT use handwritten amount unless meets holographic reqs.
Dependent Relative Revocation: Examples
“To John 1,000” [“1,000” crossed out, “10,000” written in place]
-result: John gets 1000
“To Frank and to Sam” [“Frank” crossed out]
-result: Frank gets nothing - his share goes to the residue and Sam still gets 1/2
Revival: Defn and BLL
Defn: Theory allowing a revoked will to be probated because the revoking will was itself revoked (so, this requires 2 VALID wills)
BLL: Will is PRESUMED REVOKED unless it is evident from the circumstances of revocation or from T’s contemporary or subsequent declaration that T intended the first will to take effect, OR terms of Will #3 show intent for Will #1 to take effect (look for incorporation by reference)
Revival: Presumption and Elements
Presumption against: first will is presumed revoked unless it is evident T intended it to be revived
Elements:
- Will #1 must still be in existence
- T’s intent to have Will #1 take effect
- if by physical act, see BLL - extrinsic evidence okay
- if by Will #3, then by terms of Will #3 - no extrinsic evidence allowed unless an exception such as duress or undue influence is present (court will use words in Will #3 to express intent, unless reason to suspect accuracy of those words as expression of T’s intent, such as undue influence)
Revival: Examples
Will #1: to John, 1,000
Will #2: I revoke Will #1 [then this is destroyed]
Will #1: to John, 1,000
Will #2: I revoke Will #1
Will #3: I revoke Will #2
