Revocation of Wills Flashcards
What is the general rule revocation of a will?
A person with testamentary capacity may revoke his will at any time prior to death, even if he has validly contracted not to revoke (but liable for breach of K in that case).
When a person marries after executing a will and the spouse survives the testator, does the spouse take an intestate share?
Yes, UNLESS it appears from the will (or a premarital agreement) that the omission of the surviving spouse from the will was intentional
What happens when a testator is divorced or his marriage is annulled after making a will? Does this rule apply to non-probate transfers (i.e. life insurance policies)?
Does this rule apply if the parties are merely separated?
What happens if they re-marry?
All gifts and appointments in favor of the former spouse are revoked. Hell yes!
Nope. Gotta divorce/annul.
All provisions in favor of the former spouse are revived
To whom does the pretermitted child statute apply?
Children born or adopted after the will was executed
What happens to the pretermitted child if the testator had no other kids at the time the will was executed and the pretermitted child is not mentioned in the will?
He takes an intestate share.
What happens to the pretermitted child if the testator had other kids at the time the will was executed and the pretermitted child is not mentioned in the will?
He takes the less of:
(1) an amount equal to the largest bequest made to any of the testator’s other kids; OR
2) an intestate share.
The point here is to make sure that pretermitted kids don’t take more than kids mentioned in the will.
Do lifetime gifts have any affect on a pretermitted child’s share?
No.
What assets are used to satisfy a pretermitted child’s intestate share?
First: any portion of the estate not disposed by the will;
If necessary: taken proportionately from all beneficiaries under the will
What happens if a pretermitted child dies under 18, unmarried, and without issue?
His share reverts back to the person to whom it was given by will (or to the estate, in the case of intestacy)
May a will be revoked in writing?
Yes, in whole or in part, provided that the writing is executed with the same formalities as required for the execution of the will.
What happens if testator drafted a second will that is inconsistent with a prior will?
The second instrument revokes the first to the extent of any inconsistent provisions.
Can a will be revoked by physical act?
What intent is required?
Will the physical act of another person (not the testator) suffice?
Yes, in whole or in part, but butting, burning, tearing, canceling, destroying the will (or the testator’s signature).
There must be present intent and purpose to revoke. (In other words, accidental destruction of a will does not revoke a will, even if the testator later decides he wants to revoke it - the intent must be present at the time of the physical act).
Yes, provided that the revocation is:
(1) at the testator’s direction; and
(2) in the testator’s presence
What is the effect of revocation on other testamentary instruments (e.g. duplicates)?
A valid act of revocation performed by the testator on an EXECUTED copy of the WILL (not just a codicil) revokes all other copies / ancillary instruments
What happens when a will that was last seen in the testator’s possession or control cannot be found after the testator’s death?
It is presumed revoked. (Rebuttable by clear and convincing evidence).
When will VA permit probate of a lost or destroyed will?
When the presumption of revocation is overcome and the proponent proves the following by clear and convincing evidence:
(1) that the will was properly executed;
(2) that the will was lost or destroyed
(3) the will’s content (declarations of the testator are not sufficient, but permitted).
