Wills -- Revocation AND Contracts

Revocation anytime before death

1. Subsequent instrument

2. Cancellation with intent to revoke

3. Operation of law

4. Partial revocation

Subsequent instrument

—revocation can be express or implied by terms of subsequent instrument

Cancellation with intent to revoke

—requires destructive act (e.g., burning, tearing) plus intent to revoke

• Defacement of language—crossing out terms does not have to entirely obliterate or make illegible words stricken

• Rebuttable presumption of revocation—when will last seen in testator’s possession cannot be found

• Only one copy destroyed—revocation of original or duplicate original presumptively revokes all other copies, but destruction of unexecuted copy does not revoke others

• Third party—can revoke for testator if done at testator’s direction and in testator’s presence

Operation of law

• Divorce—revokes disposition to former spouse, provision conferring general or special power of appointment on former spouse, or nomination of former spouse as fiduciary

• Separation—does not affect rights of spouse or domestic partner

Partial revocation

—permitted

Lost wills - Overcoming presumption of revocation

—party seeking to establish validity of missing will and admit copy must show:

• Valid will was executed by decedent

• Terms of missing will

• Will was lost or unintentionally destroyed and

• Decedent’s testamentary intent not altered before death

Burden on proponent

—proof by preponderance of evidence

Revocation of codicils

—revives will (contrast: revocation of will revokes all codicils to will)

Revival - Republication

—DE follows common-law approach, under which revocation of will or codicil that revoked another will automatically revived original will

Revival - Dependent Relative Revocation (DRR)

—testator’s revocation of will is disregarded if it was based on mistake of law or fact and would not have been made otherwise

Will Contracts

1. Writing requirement—in DE, oral contracts to make will enforceable when there has been part performance in reliance

2. Consideration requirement—e.g., beneficiary promises to care for testator in exchange for bequest

3. Burden and remedy—enforcing party must show parties made legally binding agreement by clear and convincing evidence; breach occurs at testator’s death (no remedy while living)

Wills Contracts - Reciprocal provisions (Joint wills)

1. Joint wills —signed by two or more persons and intended to serve as will of each person

• DE has not firmly established validity of joint wills, but courts have interpreted without declaring them invalid

2. Reciprocal wills—separate, individual wills with identical or reciprocal provisions • Either party can modify without other’s consent or knowledge