Revocation of Will Flashcards
Who and when can a will be revoked?
A testator can revoke their will any time prior to their death.
What are the three ways a will can be revoked prior to their death?
Three ways are:
-> subsequent instrument
-> destruction with intent to revoke
-> operation of law
What is a subsequent instrument that can revoke a will?
Is there a UPC distinction with regards to this?
A subsequent instrument can be any of the following:
-> subsequent writing
-> later will
-> codicil
Under UPC only a
-> holographic will
OR
-> an attested will
Does an oral revocation of a will affect the will?
No it does not.
Must the usage of a subsequent instrument explicitly state that the instrument is being used to revoke the prior will?
No it doesn’t need to be explicit, can also be implied.
What happens if there is an inconsistency with regards to subsequent instruments used to revoke a will?
The later document controls and revokes prior inconsistencies.
How is a will revoked through destruction ?
There must be the act of destruction with the intent to revoke.
What types of actions are deemed acts of destruction in revoking a will?
The acts are
-> burning
-> canceling
-> tearing
-> obliterating
OR
-> destroying a material portion of the will
How do different jurisdictions view the destructive act as being sufficient to revoke the will?
Most states
-> requires defacement of some language of the will (e.g. crossing out signatures) in addition to the destructive act
Some states (including UPC)
-> the destructive act need only affect some part of the will to be sufficient to revoke the will
When is there a rebuttable presumption of revocation?
When is this presumption rebutted?
When a will once known to exist cannot be found.
Inapplicable id a duplicate original is found.
What presumption is created when there is destruction of an executed will?
It presumes that all other duplicate originals have been revoked.
Can a third party carry out the destruction with intent to revoke of a will?
Yes when the third party’s actions are done
-> at T’s direction
AND
-> in T’s conscious presence
What is a form of operation of law that revokes a will?
Does it revoke the will for all?
Divorce
Only revokes the provisions of the will intended for the former spouse.
How is divorce treated differently between most states (including UPC) and a minority of states with regards to revocation of a will?
Most states (including UPC)
-> revokes will provisions for the former spouse unless contrary to T’s intent
Some states
-> revokes will provisions for the former spouse IF there is a property settlement agreement.
What is partial revocation?
Is it allowed?
Partial revocation is the revocation of only parts of a will.
Majority of states and UPC allow it.
Can partial revocation be at issue, if so when?
How does the majority and the minority of states deal with this?
It can be an issue when part of the revoked gift falls outside of the residuary in the will.
Majority of states
-> don’t give effect until re-execution (signed again) or republication (new document) of the will
Minority of states (including UPC)
-> partial revocation is permissible regardless of the effect, EVEN IF it leaves a gift outside of the residuary clause.
Under what circumstances can a testator cancel words in a will?
A T can cancel words in a will to decrease, but not increase, a gift to a beneficiary.
What issue arises when a will is lost?
States are split on whether there is a rebuttable presumption that points to D destroyed the will with the intent to revoke it OR no.
What is a duplicate original?
Can parties rely on the duplicate original?
Can a photocopy of the will be used? For what purposes?
Duplicate originals are two copies of the same will executed in the same manner, each complying with the same formalities.
A duplicate can be admitted to probate for usage?
A photocopy cannot be admitted to probate for usage, but can be used as proof of testamentary intent in the case of a lost or missing will.
If a will can’t be found, who has the burden of proof to show that the will exists? What standard is used?
What types of evidence are sufficient to meet the standard of proof, what types are not?
If a will cannot be found, then the burden is on the proponent of the existence of a will to prove the will’s existence by CLEAR and CONVINCING evidence.
An attorney’s copy of an original is sufficient, whereas testimony by an interested witness is not.
How are the revocations of codicils unique?
Revocation of codicils revives the will
-> contrast: the revocation of a will revokes all codicil’s to the will
How does the CL implicitly revive a will?
Common law (implied revival)
-> automatic revival of the original will upon revocation of a subsequent will
What overall approach do most states follow with regards to revival of wills?
Most states follow the “no-revival” approach.
How does the UPC implicitly revive a will?
UPS - look for testator’s intent, based on
-> whether the second will Is revoked by act or by a latter will
AND
-> if the second will is revoked by an act, whether the first will was wholly or partially revoked by that second will
