Revocation and Revival Flashcards
What is dependent relevant revocation?
Under this doctrine, a first will is not revoked if a later will is found invalid.
How can you revoke a will?
A will may be revoked by the execution of a new will, or by some other physical act with intent to revoke the will.
How can you show intent to revoke at common law?
The words of cancellation had to touch the words of the will.
How can you show intent to revoke under the UPC?
Revocation will occur even if the words of revocation do not touch the words of the will as long as there is intent to revoke.
Who can revoke the will?
The testator or someone acting at the testator’s direction and in his conscious presence.
Who has the burden of proof to determine if the will has been revoked?
The burden is on the party seeking to have the will revoked.
How does divorce impact revocation?
Divorce bars a former spouse from taking a gift made under a will that was executed prior to the divorce.
When does partial revocation occur?
Partial revocation occurs when there is a valid subsequent instrument that revokes only certain bequests and not the whole will.
Partial revocation by a physical act
Most jurisdictions recognize partial revocation by physical act. When a will is found with marks of cancellation, a presumption arises that such marks were made by the testator with an intent to revoke. This presumption is rebuttable.
What is the presumption of revocation if the will was found after death?
If the will was in the testator’s possession and control but not found after death or found destroyed after death, there is a presumption that the will is revoked. This can be rebutted by evidence that indicates otherwise.
When is revival an issue?
Revival is an issue when a testator executes will #1, executes will #2, then revokes will #2
What is the common law approach to revival?
Revocation of a second will revives the first will.
