slides 7 Flashcards
There are three main ways in which a will can be revoked:
(1) by a subsequent writing such as a new will or codicil,
(2) by a physical act as a result of the application of some form of violence to the will, or
(3) by operation of law (automatic triggering by some event, such as divorce).
UPC §2‑507. Revocation by Writing or by Act.
(a) A will or any part thereof is revoked:
(1) by executing a subsequent will that revokes the previous will or part expressly or by inconsistency;
Revocation by Subsequent Will (Or Physical Act)
Note that revocation per UPC can be of entire will or part of it. Not true in all states.
A subsequent will is one that complies with all the legal (e.g., sound mind and free of undue influence and fraud) and formalistic (e.g., signature, witnesses) requirements. If it does not, then previous will is not revoked. However, consider harmless error rule if formalities not complied with or partial noncompliance where undue influence or fraud only affected portions of new will.
A holographic will can revoke a formal, attested will.
Revocation by Subsequent Instrument
Revocations by writing can be effective in two ways:
(1) by an express provision revoking part or all of the prior will, or
(2) by inconsistency with the terms of the prior will.
Remember Republication by Codicil:
A Codicil is a Will and Is Treated as Republishing Earlier Will
Even though a codicil is only an amendment to a will, it is considered a new will (that basically incorporates the other portions of the will by reference). It requires the same formalities as any other will.
As a new will with a new date, subsequent changes to the original will or facts that might have violated the acts/events of independent significance doctrine or incorporation by reference might now be ratified.
UPC §2‑507. Revocation by Writing or by Act.
(a) A will or any part thereof is revoked:
(1) by executing a subsequent will that revokes the previous will or part expressly or by inconsistency;
…
(c) The testator is presumed to have intended a subsequent will to replace rather than supplement a previous will if the subsequent will makes a complete disposition of the testator’s estate. If this presumption arises and is not rebutted by clear and convincing evidence, the previous will is revoked; only the subsequent will is operative on the testator’s death.
(d) The testator is presumed to have intended a subsequent will to supplement rather than replace a previous will if the subsequent will does not make a complete disposition of the testator’s estate. If this presumption arises and is not rebutted by clear and convincing evidence, the subsequent will revokes the previous will only to the extent the subsequent will is inconsistent with the previous will; each will is fully operative on the testator’s death to the extent they are not inconsistent.
UPC §2‑507. Revocation by Writing or by Act.
(a) A will or any part thereof is revoked…
(2) by performing a revocatory act on the will, if the testator performed the act with the intent and for the purpose of revoking the will or part or if another individual performed the act in the testator’s conscious presence and by the testator’s direction. For purposes of this paragraph, “revocatory act on the will” includes burning, tearing, canceling, obliterating, or destroying the will or any part of it. A burning, tearing, or canceling is a “revocatory act on the will,” whether or not the burn, tear, or cancellation touched any of the words on the will.
Revocation by Physical Act
Note that whether a revocation by physical act is effective is a different question than whether an attempted replacement bequest is valid. More on this later.
Also recall that per UPC 2-503, harmless error also applies to:
(ii) a partial or complete revocation of the will,
(iii) an addition to or an alteration of the will, or
(iv) a partial or complete revival of his formerly revoked will or of a formerly revoked portion of the will.
Presumptions with Regard to Revocatory Acts
Mutilated Will:
Rebuttable presumption that testator intended to revoke the will.
Lost or Missing Will:
Rebuttable presumption that testator destroyed the will with intent to revoke.
(Will Intact and Submitted for Probate:
Rebuttable presumption that it has not been revoked. Typically, the will must either be found in the possession of the individual to whom the testator delivered the will or among the testator’s valuable papers in a place where the testator kept such documents. The source of the will and the will itself must be free from suspicion.)
UPC §2‑508. Revocation by Change of Circumstances.
“Except as provided in Sections 2‑803 (murder) and 2‑804 (divorce), a change of circumstances does not revoke a will or any part of it.”
What happens to a previously revoked will when the revoking will is itself revoked?
Revival, sometimes
What happens when a revocation of a proper will and execution of a new will are interrelated
Dependent Relative Revocation, sometimes
UPC §2‑509. Revival of Revoked Will.
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(a) If a subsequent will that wholly revoked a previous will is thereafter revoked BY A REVOCATORY ACT under Section 2‑507(a)(2), the previous will remains revoked unless it is revived. The previous will is revived if it is evident from the circumstances of the revocation of the subsequent will or from the testator’s contemporary or subsequent declarations that the testator intended the previous will to take effect as executed.
(b) If a subsequent will that partly revoked a previous will is thereafter revoked BY A REVOCATORY ACT under Section 2‑507(a)(2), a revoked part of the previous will is revived unless it is evident from the circumstances of the revocation of the subsequent will or from the testator’s contemporary or subsequent declarations that the testator did not intend the revoked part to take effect as executed.
(c) If a subsequent will that revoked a previous will in whole or in part is thereafter revoked BY ANOTHER LATER WILL, the previous will remains revoked in whole or in part, unless it or its revoked part is revived. The previous will or its revoked part is revived to the extent it appears from the terms of the later will that the testator intended the previous will to take effect.
Dependent Relative Revocation
If the testator purports to revoke his will under a mistaken assumption of law or fact, the revocation is ineffective if the testator would not have revoked his will had he known the truth.
DRR – Dependent Relative Revocation
Different names given to this doctrine in addition to DRR
Doctrine of second best
Doctrine of ineffective revocation
Doctrine of conditional revocation
Typical scenario: Testator revokes or amends her will, in whole or in part, with the intent to accomplish a different plan, either with a new will or with changes/additions made to the old will. For one reason or another, often as the result of the noncompliance with formalities, the new or amended will fails. Testator is left with a revoked will and no replacement will, thus leaving the testator intestate.
The question: Since the Testator’s 1st choice, i.e., revoke old will and probate new will, cannot be allowed because the new will fails, the court has to decide whether the testator would have preferred (i) the revocation to be effective and to die intestate or (ii) to treat the revocation as ineffective and return to the status quo ante. In essence, the court must decide what is the 2nd best choice for the distribution of the estate.
Even though it cannot be given effect, the best evidence of the Testator’s intent may be the new will or attempted gift. However, all facts permitted.
[If the court concludes that the revocation (part 1) and the new will (part 2) were interdependent parts of an overall change in plan, the court may apply DRR to not revoke the will on the theory that the revocation was conditional (or dependent) on the success of the new will.]
Will Contests
Most Common Grounds
Improper execution (affects entire will)
Lack of testamentary capacity (affects entire will)
Lack of testamentary intent (affects entire will)
Undue Influence (may affect all or only part of will)
Mistake (may affect all or only part of will)
Fraud (may affect all or only part of will)
Other Proceedings
Will Interpretation/construction
Determination of heirship or share
Procedure for bringing contest
Requires a formal testacy proceeding, even if will is being probated informally. Contestant would have to bring proceeding within three years of death. UPC 3-401.
Must be brought by an “interested party,” WITH STANDING – i.e., heirs, devisees, children, spouses, creditors, beneficiaries, and any others having a property right in or claim against a trust estate or the estate of a decedent, ward, or protected person.
In addition to court ruling, case can be settled or a private agreement can be reached among successors in a written document. UPC 3-912
UPC §3‑407. Formal Testacy Proceedings; Burdens in Contested Cases.
[Intestacy] In contested cases, petitioners who seek to establish intestacy have the burden of establishing prima facie proof of death, venue, and heirship [and that there is no will].
[Testacy] Proponents of a will have the burden of establishing prima facie proof of due execution in all cases, and, if they are also petitioners, prima facie proof of death and venue.
Contestants of a will have the burden of establishing lack of testamentary intent or capacity, undue influence, fraud, duress, mistake or revocation.
Parties have the ultimate burden of persuasion as to matters with respect to which they have the initial burden of proof.
Sound Mind (Mental Capacity)
Affirmative - The legal standard (compare the mental health standard) may be remembered by the mnemonic P-O-P-I. Was T able to know or hold in her mind enough information about:
The PROPERTY she owns and wishes to give away;
Who the OBJECTS of her bounty are;
The fact that she is engaged in a PLAN to dispose of her property on her death; and
The INTERRELATIONSHIP of the previous three?
And no negative, i.e., not suffering from an insane delusion.
Undue Influence
“A donative transfer is procured by undue influence,” if the influence exerted over the donor “overcame the donor’s free will and caused the donor to make a donative transfer that the donor would not otherwise have made.” Restatement (Third) of Property §8.3.
Fraud
Restatement (3d) §8.3(d) “a donative transfer is procured by fraud if the wrongdoer knowingly or recklessly made a false representation to the donor about a material fact that was intended to and did lead the donor to make a donative transfer that the donor would not otherwise have made.”
Elements of Fraud:
A false representation, (2) knowingly made (3) and reasonably believed, (4) which caused the disposition.
Types of Fraud:
- Fraud in the execution (fraud in the factum).
- Fraud in the inducement.
Duress
A donative transfer is procured by duress if the wrongdoer threatened to perform or did perform a wrongful act that coerced the donor into making a donative transfer that the donor would not otherwise have made.
Tortious Interference with an Expectancy
The plaintiff must prove: the existence of an expectancy; intentional interference with the expectancy through tortious conduct; causation; damages; probate remedies were exhausted.
UPC §2‑517. Penalty Clause for Contest.
A provision in a will purporting to penalize an interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause [some states use “reasonable cause”] exists for instituting proceedings.
