Take it back
Jonah’s 2015 Will states: “I leave my oil wells in Post, Texas, to Mary; I leave the residue of my estate to Alfio.”
His 2024 Will states: “I leave my entire estate to Mary.”
Jonah dies in 2025. The result: Mary takes the entire estate; Alfio is standing outside weeping, wailing and gnashing his teeth.
What is this an example of?
Revocation by Inconsistency
“I hereby revoke all wills and codicils heretofore made by me.”
What is this an example of?????????
BONUS: If this was written on a holographic will, what would be the outcome?
This is an express written revocation of a will.
BONUS: The new holographic will is controlling going foreword.
Can you partially revoke a will with a physical act under the UPC?
What about in Texas?
You can partially revoke a will under the UPC if the action and intent necessary to revoke a will in its entirety apply, and the act is directed at only part of the will.
However, partial revocation is not possible in Texas and you must destroy the entire will.
T or F: You can enter into contract to both create a will and also to not revoke a will.
True, you can do both.
However these contracts do not prevent any future documents from getting into probate, but they can be used to sue a persons estate for breach of contract.
nHarun executed a will leaving half of his estate to his son and half to his daughter. He later was told that his daughter had perished in a car accident. He then executed a new will that stated, “because my daughter died I leave my entire estate to my son.” Harun dies before discovering that his daughter survived the crash.
(a). How will Harun’s estate be distributed?
BONUS: Assume now that instead of executing a new will, Harun simply crossed out teh section giving assets to his daughter.
(a) According to the doctrine of dependent relative revocation (DRR), the estate will be distributed half to Harun’s son and half to his daughter. The revocation of his first will was conditioned upon the mistaken death of his daughter. He even includes in the provision that he is executing a new will because his daughter died. Therefore, the first will is the one that will prevail and is entitled to probate.
BONUS: The outcome would be the sams. DRR can apply partial revocations under the UPC. Alternatively if a state, like Texas, does not acknowledge partial revocation, the the old will would still apply anyway.
You represent a client who has just executed a will. How do you advise your client as to the proper methods to revoke the document? Is legal supervision of revocation necessary, or can the rules be explained plainly enough (and can one expect clients to follow them)?
A will can be revoked in several ways. The client can revoke by express revocation in writing by executing a new will or codicil that expressly states the client’s intent to revoke the will. Depending on whether the state accepts holographic wills, the client may need legal supervision to comply with formalities. The will can also be revoked by inconsistency by executing a later will or codicil that is inconsistent with the previous will.
Depending on whether the state accepts holographic wills, the client may need legal supervision to comply with formalities required to execute a will or codicil. The client can also revoke the will by physical act. This does not require legal supervision because the testator is only required to perform a revocatory act on the will with intent to revoke the will. A revocatory act includes burning, tearing, canceling, obliterating, or destroying the will. However, it might be helpful to explain to the client the difference between these physical acts and their requirements, if any (such as writing over the words for a cancellation to be valid in certain states).
T or F: If a will is missing or lost at the time of the testators death, then it is presumed revoked.
True, a lost or missing will created a rebuttable presumption that the testator destroyed it with teh intent to revoke it.
This can be rebutted if by a preponderance of the evidence that they intended for a will to remain in place.
What kinds of changes in circumstances can automatically change/revoke a will? Do these always lead to complete revocations?
There are three
1. Divorce:
Divorce generally revokes all probate transfers favoring the former spouse. It often revokes transfers to relatives of the former spouse as well, and under the UPC and some states, applies to nonprobate transfers as well. When construing the will of a divorced testator, the courts read the will as if the spouse (and sometimes relatives of the spouse) have predeceased the testator.
2. Marriage
Marriage does not revoke a will or any part of it. However, marriage does trigger rights of a spouse to an elective share or as a pretermitted spouse.
3. Birth or Adoption of Descendants
Birth or adoption of a child does not revoke a will or any part of it, but does trigger potential rights as pretermitted issue.
A week after Collin’s death, the personal representative finds that a single page out of Collin’s ten-page will is torn in half.
Determine whether revocation has occurred (assume the decedent intended to revoke the document).
Bonus: would the revocation be proper if Collin had directed another person to tear the paper?
It depends. This would constitute partial revocation by a physical act performed on that one page. Some states recognize partial revocation by physical act. Others require partial revocation to be executed by formal writing. The requirements for partial revocation by a physical act are the same as those for full physical revocation.
Here the page was torn, which is an acceptable method. If applicable under state law and the testator had a conscious intent to revoke, then a partial revocation has been completed.
Bonus: Yes so long as Collin consented and was present when the paper was torn.
Michael’s will states, “I leave to my wife $200,000.” Michael drew a line through wife and wrote in “my sibling, Erin,”
What is the likely outcome in this situation?
States that do not allow partial physical revocation would not deem the strike through as effective. The previous provision is still effective, and the wife would be the beneficiary of the $200,000.
In states that allow for partial revocation by physical act, cancelling a provision by drawing a line through it counts as a proper revocable act. The gift to Michael’s wife is therefore revoked.
What formalities a testator must use to revoke a will by physical act?
BONUS: How to do a physical act to revoke a electronic Will?????
(1) an appropriate physical act;
(2) performed on the will (or in some states, to the words of the will);
(3) made with intent to revoke; and
(4) by the testator or in the testator’s conscious presence and as directed by the testator.
BONUS: Take any actions that shows evidence of your intent to revoke the electronic will. Ex. deleting the file or destroying the device where it is stored.
You represent a client who wants to keep her estate plan secret from her children because her eldest is her favorite child. Years ago, she wrote a will dividing her estate equally among her three children, but she wants to revoke it and have the property pass according to the terms of a prior will, in which she left everything to her firstborn. She thinks the children will be less angry if the later will is just mysteriously missing as opposed to the existence of evidence that she actively revoked it. What do you advise your client? Does she need to watch what she says around others?
Making the will mysteriously disappear is not an ideal plan. If there are any copies of the later will, the children may be able to admit the copy to probate if they can prove by a preponderance of the evidence that it is a true copy and the client did not have intent to revoke the will.
The client may need to be careful what she says around others. The Court in Johnson v. Fitzgerald used the testator’s remarks to the pastor about not wanting to leave his relatives any money as evidence of the legitimacy of the copy of the will. It is best to advise the client to revoke the will properly and consider including a side letter that tactfully explains her decision to leave everything to one child.
What is the Dependent Revocation Doctrine?
When does it apply?
Helps rescue testators from their own mistakes, but its remedy is limited to negating the act of revoking the will.
The doctrine will nullify a prior revocation if:
1. The testator’s mistaken understanding of objective facts or the law led to the revocation; and
2. The testator is closer to his ideal plan with the revoked will reinstated than the testator would be if the revocation were effective.
Mallie executed Will 1 in 2022. In Will 1, she left her entire estate to her mother. She then executed Will 2 in 2024, expressly revoking Will 1. Will 2 left her entire estate to her brother. In 2025, Mallie tore up Will 2 with the intent to revoke it.
What is the likely outcome?
Mallie’s mother would most likely be the beneficiary of the estate. Under Section 2-509(a) of the Uniform Probate Code, Will 1 is revived if the circumstances surrounding the revocation of Will 2 clearly indicate such an intention.
The answer varies depending on state law. Some states allow for the automatic revival of a previously revoked will when circumstances show this was the testator’s intent. Others (like Texas) do not allow the revival of previously revoked wills. In these states Will 1 would not be revived, and Will 2 would have been revoked. Mallie’s estate would pass under the state’s intestacy laws.
Zhu-Zhu tells her sister Amy to destroy her will. Amy shreds the will, and at Zhu-Zhu’s death, the pieces are found in Zhu-Zhu’s recycling bin.
Has a revocation happened here?
Zhu-Zhu can physically revoke her own will, or she can direct another person to perform the qualifying physical act. The issue here is whether the physical act was done in the presence of the testator, which is unclear.
T or F: for a physical act of writing to void a will it must be defaced or obliterated by the writing.
True, This was the In re Will of Powers case. Where Power's writing failed to destroy the will because he didn't obscure any of the originals wills writing
You are responsible for drafting your firm’s policies for retaining executed estate planning documents. How does the presumption—that a will in the possession of a testator missing at death is presumed to be revoked—weigh into your decision of whether the executed documents should be retained by the client or by the attorney? Identify two benefits and two drawbacks of a practice of sending executed original wills home with the client.
If the client retains the will instead of the attorney, the presumption could come into play if the client merely misplaced the will. This could be devastating to the testator’s plan if the client did not in fact intend to revoke the will. This can be avoided by keeping the executed documents with the attorney. Additionally, if the client intends to revoke the will by physical act, the client will need to contact the attorney. This contact could later be evidence of the testator’s intent to revoke if someone tries to admit a copy of the will to probate.
One benefit of sending the executed original will home with clients is that it allows the clients to still maintain full control over their estate planning documents, giving them the freedom to access or review them whenever they wish without needing to contact the attorney. Additionally, this practice can reduce the attorney’s liability concerning the storage, safekeeping, or accidental loss of the document.
Will similarities between a revoked will and a new will that is found to be invalid, mean the revoked can be reinstated?
Yes, if the two instruments are sufficiently similar, many courts will apply the doctrine of dependent relative revocation. This is based on the fact that the revocation of teh prior will was dependent on teh validity of the new will. - In re Estate of Virginia E. Murphy
The court presumes that the testator would prefer the old will to intestacy, but this presumption only arises when there are broad similarities between the two documents.
In Will 1, Ricky put ‘I leave my sports car to James.’ Ricky then executed Will 2, which partially revoked Will 1 by replacing “James” with “Frederick.” Ricky burned the portion of Will 2 that devised the sports car. What legal principles will you need to research to determine the probable outcome in your state?
James would receive the sports car. The UPC states that when a will that partly revokes a previous will is entirely revoked, the previous will portion is revived. This remains true unless the testator indicates otherwise. In this situation Ricky has given no indication that he does not want the provision in Will 1 to be revived.
Keiko is a long-time client of your firm and recently came in for a consultation. In Keiko’s will, executed five years ago, she left her brother a third of her estate. Unfortunately, she and her brother are now no longer speaking, and she now does not want to leave her brother any of her estate. Keiko states that she already revoked the portion of her will that included her brother, and also admits that at a future date, her feelings towards her brother may change. She explains that if her sentiments change, Keiko has instructed her husband to amend her will if he thinks that she would want her brother to inherit any assets.
He will justify this by claiming the removal was a mistake conditioned upon her dislike of her brother. Keiko is not concerned because she also might just erase the line she drew through the provision and it will be fine. Your firm’s partner has instructed you to inform Keiko about the likelihood of success of this revival methods.
After death, the will becomes irrevocable, and it cannot be changed. Keiko's husband cannot amend your will for you, even it is her intent that the will be revised. Keiko's estate is distributed as your will states at the time of your death; it does not take into account your feelings towards her brother.
Furthermore, the provision cannot be revised because it was conditioned upon a mistake. Although there is a legal doctrine that reinstates revoked wills based on certain kinds of mistakes, the facts described here – mistakes based on shifting feelings would not qualify.
Revival and reinstatement of your original will provisions is possible if you communicate that intent clearly. It is possible that a court would find that erasing the line through the section you revoked is sufficient to trigger revival, but that is not certain. The better course of action is that should your feelings towards your brother change for the better, formally add him to your will with a duly executed writing.
An executor finds a sheet of paper attached to Alessandra’s will where Alessandra has handwritten, “I revoke my entire will. --Alessandra” The sheet is notarized and signed by two witnesses.
Determine whether revocation has occurred.
Yes, revocation has occurred. States require that revocation done by formal writing must comply with all the formalities necessary for executing a will. Those formalities generally include witnesses, their signatures and a notarized signature. Holographic wills must also be lawful under state law, which we will assume here is true.
The holographic will was validly executed with the requisite formalities. The testator must also have the requisite capacity to execute the revocation.
What is the doctrine of revival?
How does it work under the UPC?
How does it work in Texas?
The UPC takes an intent based approach and is fairly liberal at presuming revival of an earlier will when the testator revokes the document that eliminated the earlier will.
Texas is a "no-revival" jurisdiction and does not recognize the automatic revival of a previously revoked will. If a testator revokes a will by executing a new one or by physically destroying it, the prior will is not automatically revived by destroying the later will. The old will must be re-executed in accordance with statutory formalities.
Assume that there was no will contest at issue, and that Mrs. Murphy validly revoked her 1993 will by physical act, shortly thereafter writing what she believed would be a valid holographic will in 1994. Assume the holographic will is not admissible in Mrs. Murphy’s state because only attested wills are allowed. Should the doctrine of dependent relative revocation apply to allow the 1993 will to be admitted to probate? Can it be used to probate the 1994 will?
Bonus: If their is an attempt to reinstate the 1993 will, how can this reinstatement be prevented?
DRR should apply to allow the 1993 will to be admitted to probate. The 1993 revocation seems to be conditional upon Mrs. Murphy’s mistaken understanding that the 1994 holographic will would be valid, and Mrs. Murphy is closer to her ideal plan with the 1993 will reinstated than she would be if the revocation were effective.
The doctrine cannot be used to probate the 1994 will because it was holographic. The doctrine can only reinstate former wills and cannot cure invalid wills.
BONUS: The reinstatement may be overcome with evidence that there was an independent reason for revoking the 1993 will.
You represent Cody, who was married to Kaitlan; Cody and Kaitlan had eight children. The divorce settlement required that Kaitlan provide for Cody and their eight children in Kaitlan’s will. Kaitlan instead remarried and had eight more children, and left a validly executed will leaving “all of my property” to the children from the second marriage. You are an attorney advising Cody as to: (1) whether Cody can commence a will contest to prevent probate of Kaitlan’s will; and (2) whether and when Cody can bring a cause of action for breach of contract to execute the will as required by the divorce agreement.
(1) No, will contest on the basis of breach of the divorce settlement will not prevent probate of Kaitlan’s will. A contract to make a will does not have any effect on an otherwise valid will’s ability to be admitted to probate. Even though Kaitlan promised to provide for Cody and their eight children, the promise will not prevent the new will, however unfair to Cody and their eight children, from being admitted to probate. Other claims, such as undue influence or lack of capacity, should not be brought unless other evidence is available.
(2) Kaitlan limited her testamentary freedom by entering into the divorce settlement. This limit allows Cody to bring a cause of action for breach of contract. First, we must establish there was a contract to make a will. One way to establish a contract to make a will is by a writing signed by the decedent evidencing the contract. Presumably, the divorce settlement is in writing, so this element should be established. Cody can bring a cause of action for breach of contract after Kaitlan’s will has been admitted to probate. He will need to show that the divorce settlement was a valid contract. Hence, he must prove all of the elements of a contract. Once that has been proven, Cody should be able to show that Kaitlan breached the contract by making a will that excluded Cody and their eight children. Once that is established, the remedy is damages against the estate.
One of your clients, Jamillah, approaches you with the following factual situation. Two years ago, she divorced her husband, Christian, after thirty years of marriage. Within a year of the divorce, Christian married Indira; nine months after that marriage, Christian died. Jamillah knows that Christian’s will was never altered and still has provisions leaving her a good portion of his estate. Jamillah also informs you that she had a conversation with Christian a week before his death where he explicitly stated that he was not going to change his will because he wanted her to receive the property he initially bequeathed to her.
Jamillah knows that Christian had left her their vacation home in Malibu, several cars, at least $300,000, and also designated her as beneficiary of his life insurance policy. She also expects that the will is likely to designate her as personal representative, because she clearly has in-depth knowledge about his assets. Jamillah wants to know what the likelihood is that she will receive any of these assets. What two legal principles will affect the outcome?
Courts consider a change in marital status as being a significant change in circumstances that implies will revocation. Most states revoke all will provisions in favor of the former spouse. This includes property transfers, fiduciary duties, and powers of appointment.
Jamillah will probably not be entitled to act as personal representative of the estate. This provision will be revoked upon divorce. It is doubtful that she will receive any of the assets as well. She may be able to receive benefits from Christian’s life insurance policy, but some states extend implied revocation to non-probate transfers.
BONUS: Texas law automatically revokes some provisions for a spouse after divorce, but it is not a complete revocation of all provisions. Texas Estates Code § 123.001 states that divorce automatically nullifies provisions in a will or trust benefiting a former spouse, such as naming them as an executor or beneficiary. However, this does not apply to beneficiary designations for retirement accounts, life insurance, or other non-probate assets, which remain in effect unless updated by the individual.