Estates and Trusts FNBSLW 442

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Estates and TrustsFNBSLW 442

• Wills
• Revocation of Wills

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Revocation of Wills

• As long as the testator has testamentary
  capacity, he may change or revoke the will at any
  time with or without a reason.
• Wills are ambulatory documents.

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Three Types of Revocation

• By Operation of Law
• By Physical Act
• By Subsequent Writing

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Revocation by Operation of Law

• Marriage of Testator
• Divorce of Testator
• Pretermitted Heirs
• Death of Beneficiary
• Beneficiary Killed Testator

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Revocation by Physical ActRequirements

• Capacity to Revoke
• Intent to Revoke
• Satisfactory Physical Act Performed on the Will
• Simultaneous Existence of the First Three
  Prerequisites

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Capacity

• E.g., incompetent testator
• E.g., testator under duress

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Intent

• E.g., spring cleaning

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Physical Act

• Varies by State burning, canceling, effacing,
  tearing, obliterating, destroying, etc.

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Concurrence

• The testator must intend to revoke the will and
  perform the necessary physical act while having
  the requisite capacity.
• If the three elements do not simultaneously exist
  , the revocation is ineffective.
• E.g., divorcing couple -

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Partial Revocation

• Jurisdictions differ regarding partial revocation
  by adding words, strikeouts, and obliterations.
• Traditional rule ineffective as to changes.
• Modern approach partial revocations permitted

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Revocation by Subsequent Writing

• Can be by a new will, codicil, or revocation
  without replacement dispositive provisions.
• 2 types express or by inconsistency

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Express Revocation

• Preferred method.
• E.g. I, Testator, a resident of City,
  State, Country, declare that this is my last
  will and I revoke all prior wills and codicils.

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Revocation by Inconsistency

• If the provisions of several testamentary
  documents conflict, the provision in the
  instrument the testator executed closest to the
  time of death controls as to the inconsistencies.
• Any portion of the will that is not inconsistent
  with the subsequent writings would ordinarily
  remain effective.
• E.g., 2000 will and 2002 codicil -

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Revival

• The reinstatement of a will that the testator has
  already revoked.
• The will can be revived by reexecution or by
  including an express statement in a new will that
  the old will is to be effective.
• E.g., 2 wills, 1st - 1990, 2nd - 1998.
  Revocation of 2nd in 2002. Death in 2003.

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Revival

• 3 Approaches
• Common Law revival
• Majority Approach no revival
• Modern Approach testators intent

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Multiple Originals

• Each copy that contains the testators signature
  and any required attestation is considered an
  original even if the text is photocopied.
• Not a good idea. E.g., 2 original copies, one in
  safe deposit box, one in filing cabinet.