Wills Rules 3
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Prior to death
Must possess requisite intent to effect revocation.
May be revoked by
- Subsequent intstument - requires same formality as any will - oral revocation not valid; may be by implication if subsequent instrument is inconsistent with the first.
- Physical act - NY only recognizes complete revocation by act, not partial. Alterations therefore must affect entire instrument or at least major parts of testamentary scheme. Presumption of revocation of physical act where original will cannot be located, unless duplicate original is found. May be done by third party if at testator's direction, proved by two witnesses, and in testator's presence.
- Operation of law - divorc, but not separation unless disqualified for other reasons (e.g., abandonment)
- Alteration - allowed if done using same formalities of a will
If testator had will at time of death and it is not found, then rebuttable presumption of destruction with intent to revoke.
Duplicate original can be admitted to probate, but photocopy cannot.
Proponent of lost will must prove its existence by clear and convincing evidence to get it probated.
If will is destroyed, can show lack of intent to revoke by clear and convincing evidence to get it probated.
Revocation of will = revocation of all codicils to it as well.
Revocation of codicil revives altered parts of will.
By republication: Re-executing the writing, declaring it a revival of prior will.
By dependent relative revocation - revocation of will under mistaken belief of law or fact has not effectively revoked. DRR revives original will as equitable remedy.
DRR Example: T creates a second will and then writes on the first will, “I am revoking this will because I made a new will.” T did not realize that the second will was not valid. The revocation of the first will is set aside and the first will is given effect.
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