Revocation of Wills Flashcards
A person who has testamentary capacity may revoke their will…
at any time prior to their death.
If a testator has validly contracted not to revoke their will, but does so anyways….
A valid revocation will be upheld, but there may be an action for breach of contract against the testator’s estate that results in the imposition of a constructive trust.
A validly executed will may be revoked by:
- Operation of law;
- Subsequent written instrument; or
- Physical act.
If a person marries after executing a will, and the spouse survives the testator, the spouse takes an….
intestate share.
When will an (omitted) surviving spouse not receive an intestate share?
When it appears from the will (or premarital agreement) that the omission was intentional.
Inter vivos gifts and nonprobate transfers that benefit the spouse have…
no effect on the omitted spouse’s right to an intestate share.
If a testator is divorced or their marriage is annulled after executing a will…
all gifts and appointments in favor of the former spouse are revoked.
If divorced spouses reconcile and remarry…
all provisions in favor of a former spouse will be revived in a will.
The _______ statute in Virginia applies to children born or adopted after the will was executed.
pretermitted child
If the testator had no other children at the time of will execution, the pretermitted child takes…
an intestate share.
If the testator had other children at the time of will execution, the pretermitted child takes…
The LESSER of:
- An amount equal to the largest bequest made to any of the testator’s other children, or
- An intestate share.
If a testator had other children when his will was executed but made no gifts to them, the pretermitted child takes…
also nothing.
When a pretermitted child receives inter vivos gifts or insurance proceeds, what effect does this have on their entitlement to a share?
No effect, no matter how substantial.
If a testator executes a second testamentary instrument that does not contain any express language of revocation of an earlier will, to the extent possible…
the two instruments are read together.
However, the second instrument revokes (by implication) any inconsistent provisions in the first will.
Partial revocation by physical act (is/is not) permitted in Virginia.
is
[such as when the testator crosses out only one clause in the will]
The requirements for an effective revocation by physical act are:
- A “sufficient” act (BTCOD);
- With the intent to revoke (that is simultaneous with the act);
- Performed by the testator or a proxy.
Revocation by burning will be considered effective if there is
a slight singeing.
Revocation by tearing will be considered effective if there is
a completed tear.
“BTCOD” stands for:
Burning, tearing, canceling or cutting, obliterating, or destroying.
Revocation by most physical acts will be effective if they…
touch a material portion of the will.
Does accidental destruction revoke a will?
No, there must be intent to revoke present at the time of the physical act of destruction.
Virginia permits proxy revocation by physical act of another, provided that…
the revocation is at the testator’s direction, and in the testator’s presence.
Testator contacts her attorney by telephone. She advises the attorney that she would like to revoke her will. The attorney tears the will into four pieces and mails those pieces to the Testator, along with a letter explaining that her will has been revoked. Is the will validly revoked?
No, telephonic presence is not considered actual presence in the state of Virginia.
If a will cannot be found after the testator’s death and was last seen in their possession or control…
the will is presumed revoked.
