Revocation and Related Issues Flashcards
What are the two ways a will can be revoked?
- Revocation by physical act
- Revokation by subsequent will or codicil
What is required for revocation of a will by a physical act?
Testator MUST:
- Have INTENT to revoke;
- Be of SOUND MIND (and operating free of fraud, duress, etc.); AND
- Take some PHYSICAL ACTION or direction someone else to do it (proxy revocation)
What are some examples of acts that would satisfy the physical act requirement?
Burning, tearing, cutting, or otherwise mutilating the will
What is required if the physical act revocation is doe via a proxy?
Proxy’s physical act must be done:
- At the testator’s request;
- In the testator’s presence; AND
- In the presence of two witnesses
What is the NY rule on partial revocation?
NY does NOT recognize partial revocation
(e.g., T decides to make some revisions to his will by taking a black marker and crossing out a provision to replace it with another, which he then initials and dates. NY treats this as if it never happened because it was only a small modification; everyone gets what they originally were supposed to get. If the modifications were more extensive, then the whole document would be revoked.)
[Upshot: In NY, revocation of a will is All or Nothing!]
What is required for a revocation by subsequent will or codicil?
Subsequent will or codicil must meet all will formalities
What are the two ways to revoke a will via subsequent will/codicil?
- Express revocation (e.g., T makes a will with a provision stating “I revoke all prior wills and codicils.”)
- Revocation by inconsistency (i.e., If T makes a new will that completely disposes of his property, the old will is completely revoked)
(NOTE: If new will only partially disposes of property, the old will is revoked only as to the inconsistent parts!)
What are the presumptions w/r/t a will’s validity or invalidity?
–> Will is presumed NON-revocated IF it is found (i) in a “normal” location AND (ii) there are no suspicious circumstances
–> Will is presumed revoked IF (i) the original will cannot be produced OR (ii) it is found in a damaged condition
What is the general rule on a lost will?
In general, if a will cannot be found, it is presumed revoked
(BUT SEE exceptions)
When may a lost will be proven?
(It’s hard to overcome the presumption of revocation, BUT…)
Proponent of the will MUST PROVE:
- Lost will was duly executed;
- The cause of the non-production (e.g., destruction by fire, flood, theft, etc.); AND
- The will provisions are proved clearly by at least two credible witnesses OR by a copy or draft of the will
What is the fact pattern that will trigger a REVIVAL issue?
- Testator executes valid Will #1;
- T executes valid Will #2, which revokes #1; AND
- T validly revokes Will #2.
Issue: Does Will #1 get revived?
If T makes a new will that revokes Will #1, then revokes Will #2, is Will #1 revived?
No. A revoked will is treated as permanently revoked unless T reaffirms it with all will formalities, signatures, etc.
What are the two ways there can be conditional revocation of a will?
- Express conditional revocation (T expressly states in the revoking instrument that revocation is effective upon a certain event or non-event)
- Implied conditional revocation (a.k.a. Depended relative revocation)
What is the fact pattern for a dependent relative revocation issue?
- T executes valid Will #1;
- T validly revokes Will #1 (e.g., he rips it up); AND
- T executes Will #2, but it is invalid.
Issue: Does Will #1 remain effective because its revocation was impliedly conditioned on the effectiveness of Will #2?
How does a court determine which will is effective when there is implied conditional revocation/dependent relative revocation?
Look at T’s intent – Would T have preferred Will #1 over intestacy?
The more similar Will #1 and Will #2, the more the court will side with giving effect to Will #1;
The more different the two wills, the more the court will side with disposition via intestacy
