Revocation of Will & Will Contest

Revocation of Will

  1. Only T Can Revoke
  2. Methods 2 Revoke Totally / Partially
    1. Revocation by Subseq. Doc. § 6120
      1. Using exp. cl. of revocation
        1. Must have present intent 2 destroy
        2. Holog. / attested wills can merely revoke another will § 88
        3. Dif. from attested dir. 2 destroy will in future
      2. Inconsistency of disposition
        1. Not exp. revocation but concl. revoke 1st will b/c inconsistent
        2. 2 wills not have 2 B inconsistent which means no revocation
    2. Revocation by Phys'al Act § 6120
      1. Must have intent 2 revoke
      2. Revoke by
        1. T /
        2. Another person in T's presence + T's dir.
      3. 2 the paper
        1. Burn, torn / destroyed
        2. UPC changes def. of cancel so even if not touch words, could revoke
      4. 2 the writing / words
        1. Cancel, obliterate, / destroy words in CA
      5. Presume revoked by phys'al act if can't find will & trace back 2 T
      6. Copy v. duplicate set of orig.
        1. Can't revoke will by revoking copy
        2. T could w/present intent 2 revoke phys'ly act on 1 of duplicate orig., then revoke both wills § 6121
    3. Revocation by Operation of Law
      1. If divorce, disposition / appt'ment of prop. in will 2 former spouse revoked but not ins. § 6122
      2. Family code § 2024 gives notice that divorce petition, decree, / jgmt has effect of revoking will
      3. Ct has C/L pwr 2 revoke disposition 2 nonprobate prop.
      4. UPC 1990
        1. Revokes nonprobate transf's like ins.
        2. Revokes gifts 2 ex-spouse's family unless member of ex-spouse's family is member of T's
      5. Remarriage will revive will
  3. Effect of Partial Revocation
    1. Pre-resid. Devise Revoked / Fails
      1. Prop. pass under resid. cl. § 21111
    2. Partial Revocation & Codicil
      1. Codicil is any testamentary instr. modifying will
      2. Can partially revoke by codicil
      3. If revoke will by phys'al act, codicil revoked b/c codicil dep's on will
      4. Revocation of codicil has no effect on will
  4. Revalidation of Revoked Wills
    1. Repub. by Codicil
      1. Codicil can exp'ly / impliedly repub. & revalidate revoked will
      2. Can repub. formerly defective will but other cts won't allow such repub.
      3. Date of codicil is date of revived will but ct not mech'ly apply this
    2. Reexec. 2 Revive Revoked Will
      1. T signs again w/new W's § 6110
      2. Only useful in emergency
    3. Revival by Revocation of Revoking Will § 6123)a
      1. If 2nd will, which would've revoked 1st will, in whole / part is revoked by § 6120 / 6121, 1st will still revoked in whole / part
      2. Exception if evid. from 2nd will's revocation / from T's contemp. / subseq. decl's that T intended 1st will 2 take effect as exec'ed
    4. Dep. Relative Revocation (DRR)
      1. Conditional / mistaken revocation when T revokes under mistaken belief another invalid disposition will work
      2. Rebuttable presumption that revocation was dep.
      3. No mech'al applic. but 2 effectuate intent
        1. If change trivial & T want 1st will rather than none, DRR
        2. If T would rather see revocation work, then no DRR

Will Contest

  1. Gen'ly Not Contested
    1. Even if contest, gen'ly compromise b/c of contestant's status & is deserving
  2. Steps of Contesting Will
    1. Will / Not
      1. Formalities contested
      2. Then other grounds contested
      3. If win contest, then whole will fails incl'ing no contest cl.
    2. Fight Over Will Construction / Meaning
    3. Can Still Seek Equit. Remedy
  3. Probate Proced. Rules
    1. Solemn Form
      1. Inter partes / btwn parties
      2. D gets notice before probate
      3. Gen'ly contest before probate
      4. Takes more X & formalistic
      5. Guardian of ch.
        1. Gen'ly must vigorously contest otherwise breach duty
        2. In CA, guardian can allow ch. 2 B disinherited by relying on gen. family benefit § 15405
    2. Common Form
      1. Ex parte / 1 sided
      2. W/o notice prior 2 probate
      3. Short X
      4. Gen'ly probate will then contest
    3. Notice & People w/Standing
      1. Exec'or owes int'ed party as good notice as rsbly possible
      2. Open quest. on if state may allow serv. by pub. on a known heir
      3. Heirs & current devisees get notice § 8110
      4. Jgmt creditor can contest but not gen. creditor
      5. Potential contestants incl. heirs, devisees, exec'or of recent will, & devisees of prior wills § 48
      6. Exec'or of prior will has standing as fid. rep'ing int'ed person § 48)a)3
      7. Nominated trustee can always contest b/c true owners while exec'or R temp. holder
    4. No Contest Cl.
      1. Contestants who contest in good faith & w/ p/c loses, still take devises
      2. Cts like 2 say it's not contest but construction if in jxn where not allow contest w/good faith
    5. Jury Trial
      1. CA elim'ed but other states haven't
      2. Often overruled on appeal
  4. Grounds 4 Contest Other Than Formalities
    1. Capacity
      1. Age
        1. Must B @ least 18 § 6100
        2. If below 18, lack capacity unless emancipated minors
        3. Can repub. after turn 18 2 give will life
      2. Mentality / of Sound Mind § 6100
        1. T must have mental suff. / min. strength
          1. Incompetent / person under conservator of prop. can B mentally suff.
          2. Neutral fact that unusual / eccentric conduct exists w/old
          3. Doc. of lucid intervals where mentally ill person can make wills during lucid intervals
          4. Min. strength req's T 2 understand § 6100.5
            1. Nat. of testamentary act
            2. Nat. of his / her prop.
            3. Nat'al obj's of his / her bounty
        2. T must B free of mental derangement / delusion
          1. Mentally deranged if V of insane delusion affecting T's disposition
          2. Insane delusion if
            1. Belief based on nonexistent facts
              1. Maj. req. subst'l facts 2 B sane delusion
            2. Caused by mental disease
            3. No rational person would believe 2 exist
            4. Must influence gift
  5. Intent
    1. Sham / No Intent
      1. Extrinsic evid. allowed 2 show no intent § 6111.5
      2. Where holog. will recog'ed, lots of debate on present intent 2 transf. prop.
    2. Conditional
      1. Will which can operate only if some event occurs
      2. Validity of cond'al will by its own terms shall B adm'ed 2 probate / rejected in conformity w/cond. § 6105
      3. Better 2 do typical will w/cond'al gift
  6. Undue Influence
    1. Destruction of free will / agency & procurement of will not rep'ing T's desire
      1. Focus on T
      2. Contestant has b/p
    2. Presumption of undue influence if show
      1. Four part test focusing on T (7 part test in Oregon) /
        1. Susceptibility of undue influence
        2. Activity by influencer
        3. Undue profit
        4. Opp.
      2. Confid. rel. & procurement
        1. Auto. confid. rel. like dr.-pat., atty-client, priest, guardian
        2. Other rel. can B confid. rel. by fact if
          1. T was trusting & weak
          2. Spec. reliance existed
      3. Unless show indep. advice by disint'ed player
    3. Context
      1. Atty's ethics
        1. Ascertain T's capacity
        2. Ascertain T's desire 2 do will
        3. At min. should ask benefic. 2 leave rm.
        4. Shouldn't do will as atty if
          1. Get gifts unless
            1. Trinkets
            2. Close rel. where obviously nat. sh. / less
          2. Probably will return as atty
            1. Never name self as atty of estate
            2. Up 2 exec'or 2 pick atty anyway
          3. Named as exec'or / trustee unless client wants 2
          4. In state where unlicensed
        5. Risks of taking gifts
          1. Not get gift /
          2. Disciplined
        6. Safe harbor in CA 2 get gifts
          1. Indep. atty rev's +
          2. Counsel T
          3. Signs certific. of approp.
      2. Spousal influence
        1. Can't before but theoretically possible today
    4. Spectrum from due influence 2 undue influence
  7. Fraud
    1. Deny probate if fraudulent induced stmt which is
      1. False
      2. Known 2 B false
      3. Material
      4. Made w/intent 2 deceive
      5. Must actually deceive
      6. Must induce axn
    2. Dif. fraud. sit's
      1. Inducement leading 2 will then
        1. Denied probate of will § 6104 /
        2. Probate will + impose constructive trust
      2. In exec. where T sign will w/o realizing it's will
        1. Deny probate b/c no intent § 6104
      3. Inducement / in exec. leading 2 revocation
        1. Revocation void & will still good § 6104
      4. Inducement / in exec. leading 2 no revocation
        1. Probate will + constructive trust
      5. Inducement / in exec. leading 2 no will
        1. Constructive trust
  8. Mistake
    1. Externals of life inducing T 2 really mean 2 sign will
    2. Dif. mistake sit's
      1. Inducement leading 2 will
        1. No relief unless mistake & T's supp'ed disposition appear in will
      2. In exec. leading 2 signing of will
        1. If signed something entirely dif., then no intent & no will
        2. If part of contents R bad, then
          1. Deny probate 2 bad words
          2. Extrinsic evid. 2 interp. will
          3. But never add words 2 will b/c they R unattested
  9. Correction of Subst. Mistake by Construction
    1. Cannot
      1. Rewrite / reform will
      2. Save hopeless lang.
      3. Fill in blanks left by T
    2. Can
      1. Deny probate 2 mistakenly incl'ed / attested words
      2. Construe will & thereby redo will
    3. Extrinsic Evid.
      1. Only When Ambiguity
        1. Patent
          1. Obvious
          2. Sometimes extrinsic evid. in
        2. Latent
          1. Hidden & not obvious on its face
          2. Always let extrinsic evid. in
        3. Plain meaning
          1. On its face it's wrong
          2. Sometimes extrinsic evid. in
      2. Things 2 Let In
        1. Anything not compete / undermine w/written / attested words
        2. Always let in
          1. T's indir. decl's
          2. Evid. of circ.'s
        3. Dir. decl.'s sometimes let in if faced w/equivocations / description applying ='ly 2 2 devisees
    4. Details of Description Analysis
      1. Allows ct 2 correct 4 mistake in description of person / thing involving only detail & no add'al lang. needed

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Ms. Haeji Hong

December 17, 1997
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