Will Amendment - Revocation Flashcards
What is revocation of a will?
The cancellation or nullification of a will or parts of it, so it no longer has legal effect.
What are the main methods of revoking a will?
- Destruction
- A later will
- A later codicil
- Subsequent marriage
- Divorce (partially)
- Effective alteration
revocation by destruction?
A will may be revoked by “burning, tearing or otherwise destroying” it, provided the testator has the intention to revoke.
What if only destruction or intention is present but not both?
Revocation is ineffective unless both physical destruction and intention are present.
Can writing “revoked” on a will revoke it?
No. This is not a sufficient physical act
Who must carry out the destruction for it to be valid?
The testator, or another person in the testator’s presence and at their direction.
What is the presumption if a will last known in the testator’s possession is missing after death?
It is presumed the testator destroyed it with the intention to revoke it
What is the presumption if a will is found damaged?
That the testator damaged it with intent to revoke.
How can the presumption of revocation be rebutted?
By proving:
- A valid will existed at death
- It was lost/damaged after death
- The testator did not intend to revoke it or carry out the destruction
What wording is needed for an express revocation clause?
“I hereby REVOKE all former wills and testamentary dispositions and declare this to be my last will.”
Is a will without a revocation clause valid?
Yes. But earlier wills are only revoked to the extent they are inconsistent (implied revocation).
Can a codicil revoke part or all of a will?
Yes. Revocation can be partial or total, and should be stated clearly in the codicil.
What happens if the codicil has no express revocation clause?
The will is only revoked to the extent that the codicil is inconsistent with it.
If a codicil is later revoked, does it reinstate previously revoked parts of the will?
No. Revoking a codicil does not revive revoked clauses in the earlier will.
What is a mutual will?
A will made under an agreement between two testators not to revoke their wills without each other’s consent. Equity may impose a constructive trust if one tries to revoke.
What is a mirror will?
A will that mirrors another person’s (often a spouse’s) but is not binding. Each person may revoke their will at any time.
Does making a mirror will restrict future revocation?
No. Unlike mutual wills, mirror wills create no binding agreement.
