Estates & Trusts Outline- Fall 2011
Revocation
– To revoke a will
o Writing
§ Revocation must be executed in same way as a will does (either has formalities or holographic will standards)
§ Express: hereby express
§ Inconsistency: give everything to A, will #2 gives everything to B
o Act: Act + Intent to revoke
o Lost wills- Presumption that it is revoked, can be overcome
– Partial revocation by act
o CA allows partial revocation by act (some states don’t)
o Why wouldn’t you allow- any time you revoke a gift you are creating a new one and in order to create a new gift you should have to do so w/ formalities
– Q: If don’t allow partial revocation by act, and part of will is crossed out the Q is whether the whole will is revoked or you invalidate the partial revocation by act
§ One option- nothing happens by a partial revocation
§ 2nd option- you invalidate the whole will
o Cross out one person, what happens to other person
§ Majority jurisdictions: will just read the person as if crossed out person wasn’t there
§ Minority jurisdictions: person will only get the same amount ($5k and put the rest back into the pot)
Exam Tip If you see words written on the will and it looks like it is trying to revoke it:
Can you call it a revocation by writing (valid in and of itself)
Is it a valid revocation by act (do you have sufficient stuff on the will to call it a valid revocation by act)
Dependant Relative Revocation and Revival – pg. 295
– DRR: If the testator purports to revoke his will upon a mistaken assumption of law or fact, the revocation is ineffective if the testator would not have revoked his will had he known the truth
– Reason for doctrine: Testator lacks true revocatory intent if the revocation was based on a mistaken belief
– Doctrine of presumptive intent as opposed to actual intent
– Second best doctrine since don’t get exactly what testator wanted but get next best thing
LaCroix v. Senecal (1953) pg. 295
– Gist: Woman makes codicil that clarifies one person’s name, disinterested witness witnesses codicil, would revoke all of Item 5 which would disinherit people not changed in the codicil
– Problem: One of the three subscribing witnesses to the codicil was the husband of Aurea Senecal (even though not interested in part that was being changed)
– How handled if in CA: If husband counts as an interested witness, she would take the lesser share of the will or the intestacy share
– Requirement of applying DRR: Can only apply when there is a clear intent of the testator that the revocation of the old is made conditional upon the validity of the new is well brought out
– Reason applied: The sole purpose of the testator in executing the codicil was by making the very minor change in referring to her nephew, to eliminate any uncertainty as to his identity. It was furthest from her intention to make any change in the disposition of her estate
– Holding- Apply DRR and uphold original will
– Limits of doctrine: DRR applies only
o 1. Where there is an alternative plan of disposition that fails OR
o 2. Where the mistake is recited in the terms of the revoking instrument or, possibly, is established by clear and convincing evidence
– Exs:
o Take term of will to niece and cross out $5k and make it $10k
§ Effective partial revocation- crossed out old #, wrote new #, signed and dated, Not attested, Not a valid holographic codicil b/c material terms are not in own hand- no testamentary intent, changed the how much but not the to whom
§ Apply DRR- would rather take $5k than give her nothing (If took $5k and made it $2k, may think the intent would prefer that niece takes nothing)
o What about if write will saying that I leave all to Tamara and Kristen b/c Kirk has already gotten his share (and this fact isn’t true)
§ Do you fix?
· Yes- she was confused, this is still a mistake on the will
· No- she had access to this information, less likely to call something she wrote herself a mistake
o Doesn’t mention Kirk, and Kirk contests will b/c he claims mom thought he was dead
§ Death is probably ONLY situation where you would go back and let Kirk try and prove causation
§ Anything else, hard to know whether there was a mistake of fact or testator doesn’t want to give him anything
– DRR tends to be applied
o 1. Where you revoke a prior will w/ a subsequent written instrument and the subsequent instrument fails (probably a mistake of law- tried to create a new will and didn’t get there)
o 2. Mistake of fact- you can see the mistake of fact on the face of the subsequent will (I revoke my prior will b/c Kirk is dead- fact)
Estate of Alburn (1963) pg. 300
– Issue: Whether the finding of the trial court that deceased revoked the Kankakee will under the mistaken belief that she was thereby reinstating the prior Milwaukee will is against the great weight and clear preponderance of the evidence
– If in CA: If she fully revoked the will and her intent will make the Milwaukee will then we would consider her
o 1. Doctrine of Incorporation by Reference
o 2. Acts of independent significance
Integration of Wills
– Definition: All papers present at the time of execution, intended to be part of the will are integrated into the will
– Litigation arises when they are not physically connected and there is no internal coherence, where a staple has been removed or one page is in different font
Republication by Codicil
– Definition: A will is treated as if it were executed when its most recent codicil was executed, whether or not the codicil expressly republishes the prior will, unless the effect of so treating it would be inconsistent with the testator’s intent
– Distinction: Republication applies only to a prior validly executed will, whereas incorporation by reference can apply to incorporate into a will language or instruments that have never been validly executed
Incorporation by Reference
– §2-510: A writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification
o 1. Writing in existence
o 2. Identified in will
o 3. Express intent to incorporate
Clark v. Greenhalge (1991) pg. 310
– Issue: Whether a probate judge correctly concluded that specific, written bequests of personal property contained in a notebook maintained by a testator were incorporated by reference into the terms of a testator’s will
– Probate’s findings: Helen Nesmith’s notebook qualified as a “memorandum” of her known wishes, notebook was in existence at the time of codicils, notebook was incorporated by reference
– Holding: Notebook was incorporated into the will pursuant to the language and spirit of Article Fifth
– Court doesn’t really follow doctrine (since she is changing the gifts after the time of the codicil)
– UPC and gifting personal property
o Your will can say, I’m going to keep a running memo and w/ respect to keepsake, sentimental things (not $ or your house) but things
