Today’s class
 Revocation of wills or of specific devises in a will


What if you change your mind about your will? How
can you revoke it?
What if you revoke your will by writing a new will, and
the new will is invalid?
 Components of a will

When can we look outside the will for testator intent?
 Contracts relating to wills
 Are promises to provide a bequest enforceable?
 Are promises not to revoke a testamentary bequest
enforceable?
1
UPC §2-507: Revocation of
wills
(a) A will or any part thereof is revoked:
1. by executing a subsequent will that revokes the
previous will or part expressly or by
inconsistency; or
2. by performing a revocatory act on the will, if the
testator performed the act with the intent and for
the purpose of revoking the will or part or if
another individual performed the act in the
testator’s conscious presence and by the
testator’s direction.
2
Express revocation in
subsequent will
I, JOHN DOE, of Indianapolis, Indiana,
declare this to be my will, and I revoke all
previous wills and codicils that I have
made.
3
Problem:
Revocation by inconsistency
T executes a will that gives
her diamond ring to B and
her car to C.
2003
T executes a will giving all
her property to A.
2008
The codicil revokes in part
the bequest to A by
inconsistency
2009
Hypo (a): T destroys the
2008 codicil. What result?
Hypo (b): T destroys the
2003 will. What result?
A takes
everything
Codicil
also is
revoked
4
Revocation of Wills
 We’ve seen that I can revoke my will by
performing a revocatory act, but that principle is
not very useful—it’s a circular statement
 What counts as a revocatory act?

If I shred my will or if I burn it, that’s a revocatory act
 But what if I do something short of a shredding or
burning my will?
 Or what if I shred or burn my copy, and my
attorney has the original for safekeeping?
5
Harrison
Harrison v.v.
Bird Bird
p. 287
Speer instructed her attorney by
phone to revoke her will. The attorney
tore the will into four pieces and sent
the pieces along with a letter stating
that the will was revoked to Speer.
Was this a revocatory act?
Nov. 1989
Sept. 1991
Mar. 1991
Daisy Speer executed
duplicate wills naming K.
Harrison as the main
beneficiary. [A duplicate will is
signed and witnessed like the
original. It’s not a copy, so it
can be probated.]
Speer dies, the letter
from the attorney is
found but not the pieces
of the will.
Should the court probate
the duplicate, or proceed
through intestacy?
6
Did Speer revoke her will?
 It wasn’t properly revoked by the attorney
 However, a presumption of revocation is created
if the evidence establishes that the testator had
possession of the will before her death and the
will is not found among the testator’s personal
effects (p. 288).
 If the testator destroys the version of the will in her
possession, all other copies of the will are deemed
revoked as well.
7
Did Speer revoke her will?
 Note the last paragraph of the opinion rejecting the
beneficiary’s argument that the presumption of revocation
should not arise. Here’s the argument of the beneficiary:
 Daisy thought that her will had been revoked by her attorney.
Accordingly, when she burned or threw out the pieces, it wasn’t a
valid revocation because she did not have an intent to revoke the
will—she already thought it had been revoked.
 Not surprisingly, the court rejects this argument.
 As this case indicates, it’s not a good idea to have
duplicate originals. Better to have photocopies clearly
marked as COPY.
8
Questions, p. 289
1. If the four pieces had been found in her possession, the presumption of
destruction would not apply, and the will would be probated. And yes,
the lawyer would be liable for malpractice to Daisy’s heirs (or a court
might impose a constructive trust on the beneficiary of the will).
 What if the torn pieces were found in a file marked “revoked will?”
 No valid revocation under UPC 2-507 (p.286), and no presumption
because they were in her possession.
 If you’re in a harmless error state, UPC 2-503 would provide for a valid
revocation (whether or not there was a marked file—possession of the
torn pieces would provide sufficient evidence of revocation).
 What if she instructed her attorney to destroy the will while in the
lawyer’s office but left before the attorney tore up the will?
 No revocation under UPC 2-507; revocation under UPC 2-503 if clear and
convincing evidence introduced in court.
9
Questions, p. 289
2. How do you rebut the presumption of revocation? It’s not
enough just to say that the intestate heirs had a motive not
to find the will. You need something more.
 In Turner case, there was a disinterested witness who saw the will on
the day of the testator’s death, and there were disinherited siblings
with access to the testator’s house immediately after the death.
 In Pallister, there was a relative who would have benefited from
revocation with access to the testator’s house and safe deposit box
and who had complained about being disinherited, and a testator
who kept careful records about estate planning and who expressed
affection for the will’s beneficiaries.
 Remember—the presumption that a lost will was destroyed is
triggered only when the will was last in possession of the
10
testator.
Proving a lost will
 “If a will cannot be located after death, but the
trier of fact finds that it was not revoked, the will is
entitled to probate if its due execution and
contents can be proved.”

“Commonly in such cases, the will is proved by evidence
of a law-office or other copy, or from the drafter’s notes
and recollection. If its full contents cannot be proved,
the will is entitled to probate to the extent that its
contents can be proved.”

Restatement (Third) of Property: Wills and Other Donative
Transfers §4.1, cmt. k (1999).
11
Thompson v. Royall
Thompson v. Royall
p. 290
Kroll signed a will before 3
attesting witnesses; she gave
the instrument to the executor
for safe-keeping.
Sept. 4,
1932
Kroll wanted to destroy the will and codicil;
her lawyer convinced her to keep them; he
wrote “null and void” on the manuscript
cover (will) and back (codicil) and she
signed before two witnesses who did not
sign.
Sept. 15,
1932
Kroll signed a codicil before
two attesting witnesses; she
gave the instrument to the
attorney who prepared both
documents.
Sept. 19,
1932
Oct. 2,
1932
Kroll died.
12
Thompson
 Did Mrs. Kroll revoke her will by an express
writing?

No. The two witnesses failed to sign

No. The statements of revocation were in the lawyer’s
handwriting rather than that of Mrs. Kroll
 Was Mrs. Kroll’s attempt at revocation valid as the
execution of a holographic will?
 Was there a valid physical act of revocation?

No. There was no erasing or other defacing of the
words on the will
13
Revocatory act under UPC
 A revocatory act includes includes “burning, tearing,
canceling, obliterating, or destroying the will or any
part of it. A burning, tearing, or canceling is a
‘revocatory act. . .’ whether or not the burn, tear, or
cancellation touched any of the words on the will . .
. .”

UPC § 2-507(a)(2)

For cases showing flexibility on cancellation, see note 2,
page 293
14
 This provision is consistent with case law on
burning or tearing, but inconsistent with most of
the cases on canceling
Revocatory act under the
harmless error doctrine
Although a document or writing added upon a document was
not executed in compliance with Section 2-502, the document
or writing is treated as if it had been executed in compliance
with that section if the proponent of the document or writing
establishes by clear and convincing evidence that the
decedent intended the document or writing to constitute
(i) the decedent’s will,
(ii) a partial or complete revocation of the will,
(iii) an addition to or an alteration of the will, or
(iv) a partial or complete revival of his [or her] formerly
revoked will or of a formerly revoked portion of the
will.
UPC § 2-503
15
Revocation in Indiana
Ind. Code § 29-1-5-6
 No will in writing, nor any part thereof, except as in
this article provided, shall be revoked


unless the testator, or some other person in his presence
and by his direction, with intent to revoke, shall destroy
or mutilate the same; or
such testator shall execute other writing for that
purpose, signed, subscribed and attested as required in
[Ind. Code § 29-1-5-3 or Ind. Code § 29-1-5-3.1 (selfproving clause)]
 A will can be revoked in part only by the execution
of a writing as herein provided.
16
T executes a will, and the residue goes
to four named relatives. T dies, and
the will is found with one of the names
marked out in pencil, p.294
a)
Is it a valid partial revocation under UPC § 2-507?
Yes, if there is circumstantial evidence of intent (e.g., will was in T’s
possession when he died) (but partial revocations in Indiana require
an attested writing)
 What about the fact that the marking out was in pencil?
 Pencil is okay, but court may conclude that it was tentative rather
than final.

b)
What result in a state that does not permit partial revocation
by physical act?
 The four named relatives divide the residue. If the fourth name
cannot be discerned, the three remaining relatives divide the residue.
c)
The crossing out is valid even though there is no new
signature. The authenticity comes from the document being
17
in the testator’s own handwriting.
In re Estate of Stoker
122 Cal. Rptr. 3d 529 (App. 2011)
18
Dependent relative revocation
 If a revocation is presumed to depend on an
understanding of law or fact that is mistaken,
the revocation is ineffective if the testator
would not have revoked the will in the
absence of the mistaken understanding.
 T executes a new will and revokes a prior will.
The new will turns out to be invalid.
 A court will undo the revocation of the prior will
if it concludes that T would not have revoked the
prior will had T known the new will was invalid.
19
LaCroix v. Senecal
LaCroix v. Senecal
p. 295
Mar. 26, 1951
Apr. 10, 1951
Apr. 19, 1951
Dupre leaves will.
Dupre adds codicil.
Dupre dies.
Residue & Remainder
Residue & Remainder
(Aurea’s husband
serves as a witness)
One-half to my nephew, Nelson
Lamoth of Taftville,
Connecticut, to be his
absolutely;
One-half to my nephew Marcisse
Lamoth of Taftville, Connecticut,
also known as Nelson Lamoth, to
be his absolutely;
The other one-half to Aurea
Senecal of 200 Providence
Street, Putnam, Connecticut, to
be hers absolutely.
The other one-half to Aurea
Senecal of 200 Providence
Street, Putnam, Connecticut to
be hers absolutely.
The codicil
failed. Is the
original item
five renewed?
Yes. She would
not have
revoked the
original item 5
if she knew the
new item 5
would fail.
20
Dependent relative revocation
 The DRR doctrine requires that either
 there is an alternative plan of disposition that
fails, or
 the mistake is recited in the terms of the
revoking instrument (problem 2, p. 299)

a few courts are willing to accept a mistake not in
the terms of the revoking instrument when
proved by clear and convincing evidence, as in
Anderson, problem 2, page 300).
21
Problem 2, p.298
On his typewritten will that includes a bequest of
$1,000 to his nephew, T crosses out the $1,000,
writes in $1,500, and initials and dates the change.
a) $1,000—the handwritten part standing alone does not
demonstrate testamentary intent; original bequest
saved by DRR; $1,500 with observation and signature
by witnesses
b) $1,000—the $1,500 is not valid but neither is the
crossing out of the $1,000
c) $1,000 per DRR
d) Not clear. Would the testator have preferred to leave
nothing or the full $1,000?
22
Problem 3, p.298
 On his typewritten will that includes a bequest of
$5,000 to John Boone, T crosses out John and
writes in Nancy. Can Nancy take?

Nancy cannot take because the new bequest is not
properly witnessed
 Does DRR save the bequest to John?

Ordinarily not. T did not want John to take. But if John
and Nancy are married, then DRR might be applied.
 Note the differential treatment as a holograph
depending on whether the original will was a
holograph.
23
Revival
 Revival refers to situations in which a T



executes will 1,
revokes will 1 by executing will 2, and
revokes will 2 on the assumption that will 1 is revived
 In most states, will 1 is revived
 In a minority, will 1 is not revived unless re-executed,
and will 2 is saved by dependent relative revocation
 In a few states, a first will is not revoked by a second
will until the second will takes effect at T’s death, so
will 1 never was revoked by will 2 and will 1 would
be valid at T’s death
24
Revival in Indiana
 And if, after the making of any will, the
testator shall execute a second, a
revocation of the second shall not revive the
first will, unless it shall appear by the terms
of such revocation to have been his intent
to revive it, or, unless, after such revocation,
he shall duly republish the previous will.
 Ind. Code § 29-1-5-6
25
UPC §2-509 summary



Under section (a), if will 2 (the revoking instrument) wholly revokes
will 1, the revocation of will 2 by a revocatory act does not revive will 1
unless the proponent of will 1 shows that the decedent intended the
revocation of will 2 to revive will 1.
Under section (b), if will 2 only revoked will 1 in part, then the
revocation of will 2 by a revocatory act does revive the rest of will 1,
unless the party arguing against revival shows that the decedent did not
intend the revocation of will 2 to revive those parts of 1 revoked by 2.
Under section (c), if will 2 is revoked by a later will, will 3 does not
revive will 1 unless the text of will 3 indicates such a result is what the
testator intended.
26
Problems, p. 305
2. Who takes T’s property under UPC § 2-509(c)?

T probably wanted A to take under the first will—judging from
the fact that he kept all three wills in his safe deposit box.
However, you can’t tell that from the terms of the third will,
as required to revived the first will under 2-509(c). Thus, H
takes the estate.
3. UPC § 2-509 and UPC § 2-503 make DRR less
necessary but not unnecessary. DRR tries to provide the
testator’s second preferred approach. The two UPC
provisions let the court accept evidence of the testator’s
intent to carry out the testator’s preferred approach. DRR
would still be needed when a first will is revoked but the
second will is not actually drafted.
27
Revocation by operation of law

Revocation by divorce


Revocation by marriage


Spouse generally takes intestate or elective share
Revocation by birth of children


Applies in all but a handful of states where revocation
occurs only if the divorce is accompanied by a property
settlement.
Pretermitted child statutes protect unmentioned
children who were born after the execution of the will
No revocation by other changes in circumstances
28
Effect of divorce on a will

If after making a will the testator is divorced,
all provisions in the will in favor of the testator's
spouse so divorced are thereby revoked.
Annulment of the testator's marriage shall have
the same effect as a divorce as hereinabove
provided.


Ind. Code § 29-1-5-8
Under UPC § 2-804, provisions in favor of the
spouse in wills, non-probate transfers and will
substitutes are revoked, as are provisions in
favor of the divorced spouse’s relatives.
29
Components of a will


We have seen that wills must be executed with
testamentary formalities and that documents
not so executed may not be treated as wills
Nevertheless, there are circumstances under
which evidence from non-will documents may
be used to interpret wills


Incorporation by reference
Acts of independent significance
30
Components of a will
1. Integration of wills
2. Republication by codicil
3. Incorporation by reference
4. Acts of independent significance
31
Integration of wills:
Estate of Rigsby
Page 1
Page 2?
32
Republication by codicil

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.


Restatement (Third) of Property: Wills and Other
Donative Transfers § 3.4
As the example on page 309 indicates, a codicil can
fix an interested witness problem with the first will
33
(p. 309)
Case 1: Republication by codicil
T executes a will
devising all his property
to A. A and B are
witnesses to the will.
T executes a codicil
devising $5,000 to C.
C and D are witnesses
to the codicil.
2007
2008
T executes a second codicil
devising a diamond ring to
C. D and E are witnesses to
the second codicil.
2009
All my property
to A. -- T
$5,000 to C.
-- T
A diamond ring
to C. -- T
Witnesses
Witnesses
Witnesses
A, B
C, D
D, E
UPC §2-510:
Incorporation by reference

Any 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.



UPC § 2-510
35
Clark v. Greenhalge
Clark v. Greenhalge
p. 310
“Memorandum”
with list of
tangibles drafted.
No mention of
farm picture.
1972
1976
Promise to Ginny
Clark to give her
farm picture
(presumptively
contemporaneous
entry in notebook).
Will executed.
Tangibles to Greenhalge
except as “designate[d] by
a memorandum … or in
accordance with [my]
known wishes.”
1977
“Memorandum”
modified by Testator’s
cross-outs,
handwritten additions.
No mention of farm
picture.
1979
Jan./Feb. May
1980
1980
Notebook
notations made.
Nurses see
Testator writing
in it.
Codicil 1 duly
executed.
Codicil 2
duly
executed
Oct.
1980 1986
Testator
dies.
36
Note some loose ends from
Clark


We know that the notebook was in existence when
Ms. Nesmith executed her codicils, but do we know
that the devise to Ms. Clark was written by
October 23, 1980?
Did Ms. Nesmith intend to incorporate the
memoranda as part of her will or to provide a
guide to her executor (note 40, p. 312, and court
on p. 313 (“It is a written instrument which is
intended to guide Greenhalge”))?

As UPC § 2-513 indicates, the law is relaxed when it
comes to tangible personal property
37
Simon v. Grayson
Simon v. Grayson
p.315
Will left $4,000 to his executors “to be
paid by them as shall be directed by
me in a letter that will be found in my
effects and which will be addressed to
my executors and dated March 25,
1932.”
Mar. 25,
1932
July 3,
1933
Nov. 25,
1933
Codicil to the will.
Letter of July 3, 1933 found in the
testator’s safe-deposit box addressed to
the executors: “In my will I have left you
$4,000 to be paid to a person named in
a letter. I direct you to pay the $4,000 to
Esther Cohn.”
1935
After 1935
Testator dies.
38
Problem 1, page 315

Under standard incorporation by reference
doctrine, an entry made after execution of
the codicils would not be valid

Under harmless error (UPC § 2-503) and UPC
rule for incorporation by reference (UPC § 2513), the entry would be valid. Substantial
compliance probably would result in upholding
the entry
39
UPC §2-512: Acts of
independent significance

A will may dispose of property by reference to acts and
events that have significance apart from their effect
upon the dispositions made by the will, whether they
occur before or after the execution of the will or before
or after the testator’s death.

Note that this doctrine allows the testator to alter the
identifies of beneficiaries, or the property they receive, after
execution of the will


Case 2, pp. 323-324, and leaving a more valuable automobile to
a nephew, or changing the beneficiaries of the $1,000 payments
to employees
No reason to think the purchase of the new car or the hiring and
firing decisions were influenced by the will
40
Problems, p.324

1. “Contents of my house”

It is unlikely that T would have changed furniture, jewelry,
artwork and clothing because of the will. But would it have
affected what T put in the safe?


Stock certificates and cash—intangible personal property—may not
count when the bequest is a general one like this.
“Contents of the right-hand drawer of my desk” or of “my
safe deposit box at First National bank”


Courts uphold bequests from safe deposit boxes, even though
they could be affected by testamentary motives, because of the
protections against fraud.
A locked right-hand drawer with no access to others is difficult
41
to distinguish from a safe deposit box
Problems, p.324

T’s will describing the envelopes

Could uphold under either acts of independent significance or
incorporation by reference (if in existence at time of will or later
codicil)
2. Sarah’s devise of the residue of her estate in 2000 to a
charitable trust established by her brother, which was
established in 2001.


The devise can be upheld under the doctrine of independent
significance. It is a devise of Barney’s own property that she ties
into. Moreover, no room for fraud since the object of her bequest
is found in another duly executed will.
Can’t use incorporation by reference since Barney’s will wasn’t in
42
effect when she wrote her will.
Contracts relating to wills

Contracts relating to wills


Are promises to provide a bequest enforceable?
Are promises not to revoke a testamentary
bequest enforceable?


The law of wills and trusts looks to the law of
contracts for answers
If contract is breached, will is probated, and
contract beneficiary receives a remedy (e.g.,
damages, constructive trust)
43
Problems on contracts to
make a bequest, p. 326
1.
2.
Sidney has no contract claim—the terms of the
“contract” are too ambiguous to be enforced.
Sidney’s only remedy lies in quantum meruit, but
he probably has already been paid for his services.
The breach of the contract did not revoke the will,
so A takes under the will. T could have revoked
the will, and A would have been out of luck. But T
didn’t. (Had T revoked the will, A would have been
entitled to quantum meruit for the services she did
perform.)
44
Problems on contracts to
make a bequest, pp. 326-327
3.
4.
We don’t have a valid will (one signature), but
we have a valid contract to make a will. B was
entitled to specific performance of the contract.
The result in Borelli is unfair. W really did give
consideration.
45
Contracts not to revoke a will


Usually arise in the context of mutual or
joint wills between spouses (e.g., Pavlinko,
Snide, Hall)
States have tried to avoid interpretive
problems by requiring contracts for bequests
to be in writing (UPC § 2-514)

But the writing requirement is not always
enforced
46
Indiana on contracts not to
revoke a will

In order to create a contract not to revoke a will, no
single verbal formula is necessary.

“It is generally accepted that a strong indicia of such a
contract is a joint will that treats the testators' property
as a single unit,” leaving property to the survivor and
then to “a logical beneficiary of both the testators.”


Kitchen v. Blue, 498 N.E.2d 41 (1986)
"The burden of proving that mutual and reciprocal wills
were made pursuant to a valid and enforceable contract
is on those who assert such to be true,” and extrinsic
evidence may be considered

Cramer v. Echelbarger, 234 N.E.2d 864 (1968)
47
Avoiding a finding of a
contract not to revoke a will

Wills not Contractual. Although my
Husband/Wife/Spouse and I are executing our
Wills at or about the same time, they are not
intended to be and shall not be construed to be
contractual, even though certain provisions are
reciprocal. Each Will shall be subject to
revocation by its maker.
48
Can public policy override
Via v. Putnam
contracts
not to revoke?
Via v. Putnam, p. 329
CONTRACT
Joann
Putnam
Edgar
Putnam
Children
Rachel
Putnam
Pretermitted
Spouse Share??
Florida decides that
pretermitted spouse
(and elective share)
statutes trump the
contract; majority of
states come out the
other way
49
Problem with enforcing
promises not to revoke after
remarriage

If the contract dictates that the estate goes to the
children rather than a new spouse when the surviving
spouse dies, to what extent can the surviving spouse
use assets of the estate during the second marriage?



Can the two of them go an expensive cruise together?
Can the surviving spouse buy an expensive anniversary gift?
As we’ll see more clearly when we discuss the trusts
part of this course, you should use trusts rather than
contractual wills to work out issues about the ultimate
disposition of a couple’s estate.

Prenuptial agreements also are important for remarriages 50
Will execution in Indiana
Ind. Code § 29-1-5-3
b) A will may be attested as follows:
(1) The testator, in the presence of two (2) or more
attesting witnesses, shall signify to the witnesses
that the instrument is the testator's will and either:
(A) sign the will;
(B) acknowledge the testator's signature already
made; or
(C) at the testator's direction and in the testator's
presence have someone else sign the testator's
name.
(2) The attesting witnesses must sign in the
presence of the testator and each other.
51
UPC §2-513: Incorporating
tangible personal property

Separate writings for the disposition of
tangible personal property may be prepared
after the execution of the will if



the writing is signed by the testator and
the property and devisees are described with
reasonable certainty
The writings may be altered by the testator
after its preparation
52
UPC §2-514: Contracts
concerning succession
A contract to make a will or devise, or not to revoke a will
or devise, or to die intestate . . . may be established only by
(i) provisions of a will stating material provisions of the
contract,
(ii) an express reference in a will to a contract and extrinsic
evidence proving the terms of the contract, or
(iii) a writing signed by the decedent evidencing the
contract.
The execution of a joint will or mutual wills does not create a
presumption of a contract not to revoke the will or wills.
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