Revoking and Reviving a Will

Question 1

Methods of revoking a will

Answer 1

(1) physical act
(2) executing subsequent will
(3) divorce

Question 2

Revoking will via physical act

Answer 2

Burning, tearing, canceling, obliterating, or destroying the entire will or any part of it

The physical act does NOT need to touch any of the words on the will but must be done with the intent to revoke the will

Question 3

Revoking by executing a subsequent will

Answer 3

If the subsequent will (W2) has an express clause of revocation → this revokes the prior will (W1)

Question 4

Subsequent will revoking by implication

Answer 4

W2 can revoke W1 by implication if testator intended W2 to replace (not supplement) W1

▪ Look for W2 disposing of all or substantially all the property disposed of in W1

▪ If a subsequent will does not fully dispose of the testator’s estate, it will revoke the prior will only up to the inconsistency

Question 5

Revoking via divorce

Answer 5

Upon divorce, provisions in favor of the ex-spouse are ineffective UNLESS testator made clear that such provisions were intended to survive divorce

Question 6

Reviving a will

Answer 6

A revoked will can be revived if it is restated, re-executed, or republished, or there is other clear evidence of intent to revive

Question 7

Republication requirements

Answer 7

Re-sign the original will and have two witnesses attest the will

Question 8

Codicil used to revive will

Answer 8

A codicil made to a revoked will revives the revoked will as of the date of the codicil

Question 9

Presumption by lost will

Answer 9

If the will was in testator’s possession prior to death and cannot be found after death → presumption that testator destroyed the will with intent to revoke