Revocation by Physical Act

Question 1

What three physical acts can revoke a will?

Answer 1

Three physical acts can revoke a will:

1. Subsequent Written Instrument.
2. Cancellation
3. Partial Revocation.

Question 2

What is a subsequent written instrument?

Answer 2

A will can be revoked by either:

a. A subsequent written instrument that is executed for the sole purpose of revoking the prior will; OR

b. A subsequent will/codicil containing a revocation clause or provision that are inconsistent with those of the prior will. (only revokes to the extent it conflicts with the prior will).

Question 3

What is cancellation?

Answer 3

A will is revoked if the testator, or another person in his presence and at his direction burns, tears, obliterates, or destroys the will WITH the INTENT to revoke the will.

Question 4

To cancel out certain words in a will what is the common law rule?

Answer 4

Words of cancellation are valid ONLY IF they come in physical contact with the words of the will (e.g., words written over the original terms of the will).

Question 5

To cancel out certain words in a will, what is the UPC rule?

Answer 5

Under the UPC, words of cancellation need NOT touch any of the words of the will, but they must be somewhere on the will to validly revoke.

Question 6

What is partial revocation?

Answer 6

In most states, when marks of cancellation (e.g., putting a line through terms in the will) are found on a will KNOWN TO LAST HAVE BEEN IN THE TESTATOR”S POSSESSION, a PRESUMPTION arises that such marks were made by the testator with the intent to revoke.

The burden to overcome this presumption is on the party claiming that the devise has not been revoked.

Question 7

What happens to a revoked devise?

Answer 7

Generally, if a devise is revoked, it passes as part of the residuary estate. However, some states do NOT permit partial revocations.