Revoking and Reviving the Will Flashcards
Methods of Revocation
- Physical act
- Later valid will
- Divorce
Revocation by Physical Act (Revocatory Act on the Will)
Includes: burning, tearing, canceling, obliterating, or destroying the will or any part of it (do not have to touch the actual words on the will). But the physical act must be done with the intent to revoke.
Can the Testator Direct Another to Perform a Revocatory Act?
A testator’s direction to perform the revocatory act is sufficient if the other individual performs it in the testator’s conscious presence. The act need not be in the testator’s line of sight.
Revocation by Later Will
A valid later will may revoke an earlier one in whole or in part (partial revocation would be called a codicil).
Revocation by Later Will: Express Revocation v. Inconsistency
Revocation can be express. If a later will does not expressly revoke the prior one, its execution might nevertheless revoke the prior one by inconsistency in whole or part.
Presumption for Later Wills
If a later will makes a complete disposition of the testator’s estate –> the testator is presumed to have intended a later will to replace rather than supplement a previous will. If this presumption is not rebutted by clear and convincing evidence, the previous will is revoked.
Revocation Via Later Will That Does Not Account for the Entire Estate
-When a testator executes a second testamentary instrument that does not contain any express language of revocation of an earlier will, the second instrument is treated as a codicil to the will, but it revokes the will to the extent of any inconsistent provisions. A valid subsequent will serves to revoke all contradictory provisions of an earlier will.
Revocation by Divorce
If the testator is divorced after making a will, all provisions of the will in favor of or relating to the now ex-spouse become ineffective for all purposes unless it is apparent in the will that the provisions were intended to survive the divorce.
Revocation of Copy v. Revocation of Original Will
Keep in mind that a revoked copy of an instrument (e.g. tearing up a copy) is not a revocation of the will itself, so it is not valid revocation.
Cancellation
Acts such as crossing out or marking through the will or part of it or writing words on the will such as “canceled” or “null and void”
Dependent Relative Revocation (DRR)
If a revocation was based (conditioned) on a mistake of fact or law, then undo or “lift” that revocation if that is what the testator would likely prefer. Typically courts apply DRR only when there is a sufficiently close identity between the bequest mistakenly revoked and the bequest reflecting testator’s likely intent.
Revival of Revoked Wills (General Rule)
Once a will is validly revoked, it cannot be brought back to life.
Exceptions to the General Rule
The will is restated, re-executed, republished (can be made by codicil), or other clear evidence of intent to revive.
Codicil to a Will (Republication by Codicil)
Revives a will, so if a codicil is made to a revoked will, it will generally incorporate and revive the revoked will as of the date of the codicil.
Lost Wills (Presumption of Revocation)
A will that can be traced to testator’s possession at death but which either cannot be found or is found mutilated after testator’s death is presumed to have been destroyed or mutilated by testator (and not someone else) with the intent to revoke. If the will was known not to be in testator’s possession at death, the presumption is not raised.
-The presumption is concerned with the original will (whether there is a copy is irrelevant)
