Will Revocations
What can be revoked by a will?
Any part(s) of will
All of the will
Texas Approach on Revival
No revival of wills in Texas so it goes through intestacy
Patent Ambiguity
ambiguous on its face and does not convey a sensible meaning to the reader
Fact of Independent Significance
Tells us when we can look outside the four corners of the will to ascertain at death property distribution
Dead Person's Statute Issue:
Can evidence of what testator said or did beused as evidence in will litigation
Texas Approach of Partial Revocation by Physical Act
What is republication
treating an old will if it was executed later
How does something pass if there is a blank space?
CL and Modern law would likely be unwilling to permit extrinsic evidence so pass through the residual clause
Precatory Language
"I hope", "I would like", "I wish"
Presumption on Contents
contents of specifically gifted items presumed NOT included with gift
Requirements for Revocation by Physical Act
1. Mental Capacity
2. Revocation Intent
3. Physical Act --> by testator or proxy in presence
4. Concurrence of first three requirements
How does Court determine when to use DRR (Doctrine of Dependent Relative Revocation)?
The more similar will 1 & 2, the more likely they only would have revoked will 1 if will 2 is valid
Definition of No apparent ambiguity
the meaning is clear but would extrinsic evidence be used to create an ambiguity
Types of Trusts into which pour overs allowed
2. Trust created by another person, even if after will execution
3. Trust not yet in existence at date of testator's death due to lack of funding as long as trust is --> in writing and identified in the will
Tangible Personal Property Document
Not recognized in Texas because it is not a will, attested, or holographic. Cannot be incorporated
Will Revocation by Operation of Law
Murder
Ademption
Divorce
Pretermitted Children
Lapse
Failure to Survive
Void Marriage
Presumption of multiple originals
If one cannot locate all the originals, testator destroyed "extra" originals realizing the wisdom of having only one original
Can you use extrinsic evidence with Latent Ambiguity?
Yes,
See this in Hultquist v Ring -- Beneficiary misdescription & In re Estate of Cohorn -- Property misdescription
Burial Plots
May devise a burial plot but it must be specifically mentioned. If not, spouse gets one and the rest got to heirs
When does a class close?
The Rule of Convenience: Earlier of
1. Natural closing of class (no way to open it)
2. when first class member entitled to property
The applicant for probate of a will must prove testator did not revoke the will by preponderance of the evidence
How to prove the contents of a will?
By testimony of someone who:
1. Read the will
2. Heard the will read aloud
3. Can identify a copy
How did the Texas Legislature overturn San Antonio Area Foundation v Lang
They added in the estates code how judicial modification and reformation may take place. Places limitations on bringing evidence on no-apparent ambiguity
9/1/1979
In Contractual wills, express provisions in will stating that
- contract exists;
- the material terms of the K,
- does not have to say contract "mutually in consideration" and "agree we cannot revoke without the written consent of the other"
Texas Rule of Evidence 601 (b)
Only parties to lawsuit might fit within the rule
Applies only if action by or against a personal representative
Oral statements of the testator are excluded from evidence