Revocation

Question 1

Revocation by physical act

Answer 1

1. heavily tested
2. revocation by physical act: the will is burned, torn, cancelled, destroyed, or obliterated by testator with simultaneous intent to revoke
   i. simultaneous intent to revoke: concurrence of act and intent to revoke
   a. accidental destruction is insufficient, even if testator later intends to revoke

ii. act must be done by the testator (or someone in testator’s presence at their direction)

iii. cancellation: crossing out with pen or pencil, or defacing the signature
a. writing void in the margin is not cancelation

iv. obliteration: erasing
v. burning: any even slight singeing is sufficient
vi. tearing: must touch some material part of the paper of the physical will

3. note: a will that is destroyed by physical act can still be probated under dependent relative revocation if at least one witness testifies to its terms
   i. the witness does not have to be an attesting witness on the will (ex. can be the drafting attorney)

Question 2

Effect of revocation

Answer 2

4. a will can be revoke in whole or in part by physical act

5. revocation by physical act of a duplicate copy of a will revokes the original will

Question 3

Effect of revocation on other instruments

Answer 3

6. if the codicil and will are on separate pieces of paper
   i. physical destruction of the codicil does not revoke a will, even if testator intends so
   ii. physical destruction of a will revokes all separate codicils, unless testator does not so intend
7. if the codicil and will are on the same piece of paper
   i. defacing the will portion revokes the codicil
   ii. defacing the codicil does not revoke the will, unless the testator so intends

Question 4

Interlineations - Revocation

Answer 4

8. interlineation: writing between the lines
9. interlineation of a holograph is
   i. revocation of an altered provision and valid new disposition
   ii. the holographic codicil must have who and what in handwriting to be valid
   iii. but note: prior signatures are deemed adopted at the time an interlineation is made, so no signature is needed for a holographic codicil interlining a will
10. special rules
    i. a cancelation or interlineation cannot be used to increase a gift (except implicitly to the residuary), only to decrease one
    a. ex. X does not take more if “to X and Y” and testator cancels out Y’s name

Question 5

Revocation - missing will

Answer 5

1. a will not found at death is presumed to have been destroyed with intent to revoke
2. requirements
   i. testator was competent until death
   ii. will was last in testator’s possession
   iii. neither the will nor a duplicate is found

Question 6

Revocation - mutilated wills

Answer 6

1. presumed to have been revoked by intent to mutilate if
   i. will was found in mutilated condition
   ii. will was last in testator’s possession
2. a will lost or destroyed without intent to revoke is admissible to probate if there is adequate proof of its contents

Question 7

Revocation by written instrument

Answer 7

1. express revocation: revocation by a later will or codicil with formalities of a valid will
   i. an attested will can be revoked by holograph, and vice-versa
2. implied revocation: revocation by terms of a second testamentary instrument
   i. partial inconsistency: subsequent testamentary instrument making inconsistent dispositions revokes the inconsistent terms of the prior will
   ii. revocation by implication if subsequent will entirely disposes of testator’s estate
   iii. if both instruments admitted to probate, the mention of a child in either will precludes pretermission

Question 8

Revocation by operation of law

Answer 8

see omitted children, omitted spouse, and termination of marriage (infra)

Question 9

Dependent relative revocation (AKA mistake in validity of a subsequent testamentary instrument)

Answer 9

ESSAY
• the doctrine of dependent relative revocation applies when a testator revokes his will under the mistaken belief that another disposition would be effective, and would not have revoked but for the mistake

3. DRR requirements:
   i. when testator revokes a will or portion thereof (by physical at or written instrument)
   ii. under mistaken belief that a substantially identical will or codicil effectuates her intent
   iii. and belief is mistaken bc second will is either invalid or fails to effectuate testator’s intent

i. Fact pattern
1. T executes VW1, testator validly revokes W1, testator executes W2 but it is invalid.
2. Does W1 remain, was destruction of W1 impliedly condition on validity of W2?
a. Romeo and Juliet revocation. Romeo only wanted to kill himself conditioned on Juliet being dead. Testator only wanted to revoke W1 conditioned on W2 being valid.

ii. Depends on T’s intent—would testator have preferred W1 over intestacy
1. The more similar W1 and W2 are, the more likely the court will apply DDR
2. The more different W1 and W2 are, the more likely the testator would have preferred intestacy.

ii. if an interlineation is less than the cancelled provision, then DRR cannot be used
a. i.e. beneficiary can take under the original will under DDR if a codicil was not valid, but not if the effect of the interlineation was to reduce the gift

5. bar tips:
   i. if you see a mistake wrt a subsequent will, where the mistake arises because the subsequent will is either invalid or fails to effectuate testator’s intent, think DRR
   ii. the two wills must be substantially identical
   iii. if the revocation is by subsequent evidence, extrinsic evidence cannot be admitted to show mistake
   iv. if the subsequent instrument is defectively executed, the revocation is ineffective, and there is no need to apply DRR

Question 10

Reviving revoked wills

Answer 10

1. a revoked will still in existence may be revived by re-execution or republication by codicil
   i. does not apply to wills revoked by physical act
2. a will (Will 1) may also be revived by revoking the will (Will 2) that revoked it
   i. if Will 2 revoked by physical act: extrinsic evidence must show intent to revive prior will (such as statements during revocation)
   ii. if Will 2 revoked by a subsequent will/codicil: the terms of the subsequent will or codicil must show a clear intent to revive the original will
   iii. illustration:
   a. Will 2’s execution revokes will 1:
   b. if Will 2 is revoked by physical act, extrinsic evidence can show intent to revive Will 1
   c. if Will 2 is revoked by Will 3, Will 1 is only revived if intended in the terms of Will 3