SECTION 2-507. REVOCATION BY WRITING OR BY ACT Uniform Probate Code
(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. For purposes of this paragraph, “revocatory act on the will” includes burning, tearing, canceling, obliterating, or destroying the will or any part of it. A burning, tearing, or canceling is a “revocatory act on the will,” whether or not the burn, tear, or cancellation touched any of the words on the will.
(b) If a subsequent will does not expressly revoke a previous will, the execution of the subsequent will wholly revokes the previous will by inconsistency if the testator intended the
(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. For purposes of this paragraph, “revocatory act on the will” includes burning, tearing, canceling, obliterating, or destroying the will or any part of it. A burning, tearing, or canceling is a “revocatory act on the will,” whether or not the burn, tear, or cancellation touched any of the words on the will.
(b) If a subsequent will does not expressly revoke a previous will, the execution of the subsequent will wholly revokes the previous will by inconsistency if the testator intended the
subsequent will to replace rather than supplement the previous will.
(c) The testator is presumed to have intended a subsequent will to replace rather than
supplement a previous will if the subsequent will makes a complete disposition of the testator’s estate. If this presumption arises and is not rebutted by clear and convincing evidence, the previous will is revoked; only the subsequent will is operative on the testator’s death.
(d) The testator is presumed to have intended a subsequent will to supplement rather than replace a previous will if the subsequent will does not make a complete disposition of the testator’s estate. If this presumption arises and is not rebutted by clear and convincing evidence, the subsequent will revokes the previous will only to the extent the subsequent will is inconsistent with the previous will; each will is fully operative on the testator’s death to the extent they are not inconsistent.
Comment
Purpose and Scope of Revisions. Revocation of a will may be by either a subsequent will or an authorized act done to the document. Revocation by subsequent will cannot be effective unless the subsequent will is valid.
Revocation by Inconsistency. As originally promulgated, this section provided no standard by which the courts were to determine whether in a given case a subsequent will with no revocation clause revokes a prior will, wholly or partly, by inconsistency. Some courts seem to have been puzzled about the standard to be applied. New subsections (b), (c), and (d) codify the workable and common-sense standard set forth in the Restatement (Second) of Property (Donative Transfers) § 34.2 comment b (1991). Under these subsections, the question whether the subsequent will was intended to replace rather than supplement the previous will depends upon whether the second will makes a complete disposition of the testator’s estate. If the second will does make a complete disposition of the testator’s estate, a presumption arises that the second will was intended to replace the previous will. If the second will does not make a complete disposition of the testator’s estate, a presumption arises that the second will was intended to supplement rather than replace the previous will. The rationale is that, when the second will does not make a complete disposition of the testator’s estate, the second will is more in the nature of a codicil to the first will. This standard has been applied in the cases without the benefit of a statutory provision to this effect. E.g., Gilbert v. Gilbert, 652 S.W.2d 663 (Ky. Ct. App. 1983).
Example. Five years before her death, G executed a will (Will #1), devising her antique
(c) The testator is presumed to have intended a subsequent will to replace rather than
supplement a previous will if the subsequent will makes a complete disposition of the testator’s estate. If this presumption arises and is not rebutted by clear and convincing evidence, the previous will is revoked; only the subsequent will is operative on the testator’s death.
(d) The testator is presumed to have intended a subsequent will to supplement rather than replace a previous will if the subsequent will does not make a complete disposition of the testator’s estate. If this presumption arises and is not rebutted by clear and convincing evidence, the subsequent will revokes the previous will only to the extent the subsequent will is inconsistent with the previous will; each will is fully operative on the testator’s death to the extent they are not inconsistent.
Comment
Purpose and Scope of Revisions. Revocation of a will may be by either a subsequent will or an authorized act done to the document. Revocation by subsequent will cannot be effective unless the subsequent will is valid.
Revocation by Inconsistency. As originally promulgated, this section provided no standard by which the courts were to determine whether in a given case a subsequent will with no revocation clause revokes a prior will, wholly or partly, by inconsistency. Some courts seem to have been puzzled about the standard to be applied. New subsections (b), (c), and (d) codify the workable and common-sense standard set forth in the Restatement (Second) of Property (Donative Transfers) § 34.2 comment b (1991). Under these subsections, the question whether the subsequent will was intended to replace rather than supplement the previous will depends upon whether the second will makes a complete disposition of the testator’s estate. If the second will does make a complete disposition of the testator’s estate, a presumption arises that the second will was intended to replace the previous will. If the second will does not make a complete disposition of the testator’s estate, a presumption arises that the second will was intended to supplement rather than replace the previous will. The rationale is that, when the second will does not make a complete disposition of the testator’s estate, the second will is more in the nature of a codicil to the first will. This standard has been applied in the cases without the benefit of a statutory provision to this effect. E.g., Gilbert v. Gilbert, 652 S.W.2d 663 (Ky. Ct. App. 1983).
Example. Five years before her death, G executed a will (Will #1), devising her antique
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desk to A; $20,000 to B; and the residue of her estate to C. Two years later, A died, and G
executed another will (Will #2), devising her antique desk to A’s spouse, X; $10,000 to B; and
the residue of her estate to C. Will #2 neither expressly revoked Will #1 nor made any other
reference to it. G’s net probate estate consisted of her antique desk (worth $10,000) and other
property (worth $90,000). X, B, and C survived G by 120 hours.
Solution. Will #2 was presumptively intended by G to replace Will #1 because Will #2 made a complete disposition of G’s estate. Unless this presumption is rebutted by clear and convincing evidence, Will #1 is wholly revoked; only Will #2 is operative on G’s death.
If, however, Will #2 had not contained a residuary clause, and hence had not made a complete disposition of G’s estate, “Will #2” is more in the nature of a codicil to Will #1, and the solution would be different. Now, Will #2 would presumptively be treated as having been intended to supplement rather than replace Will #1. In the absence of evidence clearly and convincingly rebutting this presumption, Will #1 would be revoked only to the extent Will #2 is inconsistent with it; both wills would be operative on G’s death, to the extent they are not inconsistent. As to the devise of the antique desk, Will #2 is inconsistent with Will #1, and the antique desk would go to X. There being no residuary clause in Will #2, there is nothing in Will #2 that is inconsistent with the residuary clause in Will #1, and so the residue would go to C.
The more difficult question relates to the cash devises in the two wills. The question whether they are inconsistent with one another is a question of interpretation in the individual case. Section 2-507 does not establish a presumption one way or the other on that question. If the court finds that the cash devises are inconsistent with one another, i.e., if the court finds that the cash devise in Will #2 was intended to replace rather than supplement the cash devise in Will #1, then B takes $10,000. But, if the court finds that the cash devises are not inconsistent with one another, B would take $30,000.
Revocatory Act. In the case of an act of revocation done to the document, subsection (a)(2) is revised to provide that a burning, tearing, or canceling is a sufficient revocatory act even though the act does not touch any of the words on the will. This is consistent with cases on burning or tearing (e.g., White v. Casten, 46 N.C. 197 (1853) (burning); Crampton v. Osburn, 356 Mo. 125, 201 S.W.2d 336 (1947) (tearing)), but inconsistent with most, but not all, cases on cancellation (e.g., Yont v. Eads, 317 Mass. 232, 57 N.E.2d 531 (1944); Kronauge v. Stoecklein, 33 Ohio App.2d 229, 293 N.E.2d 320 (1972); Thompson v. Royall, 163 Va. 492, 175 S.E. 748 (1934); contra, Warner v. Warner’s Estate, 37 Vt. 356 (1864)). By substantial authority, it is held that removal of the testator’s signature – by, for example, lining it through, erasing or obliterating it, tearing or cutting it out of the document, or removing the entire signature page – constitutes a sufficient revocatory act to revoke the entire will. Board of Trustees of the University of Alabama v. Calhoun, 514 So.2d 895 (Ala.1987) and cases cited therein.
Subsection (a)(2) is also revised to codify the “conscious-presence” test. As revised, subsection (a)(2) provides that, if the testator does not perform the revocatory act, but directs another to perform the act, the act is a sufficient revocatory act if the other individual performs it in the testator’s conscious presence. The act need not be performed in the testator’s line of sight. See the Comment to Section 2-502 for a discussion of the “conscious-presence” test.
Solution. Will #2 was presumptively intended by G to replace Will #1 because Will #2 made a complete disposition of G’s estate. Unless this presumption is rebutted by clear and convincing evidence, Will #1 is wholly revoked; only Will #2 is operative on G’s death.
If, however, Will #2 had not contained a residuary clause, and hence had not made a complete disposition of G’s estate, “Will #2” is more in the nature of a codicil to Will #1, and the solution would be different. Now, Will #2 would presumptively be treated as having been intended to supplement rather than replace Will #1. In the absence of evidence clearly and convincingly rebutting this presumption, Will #1 would be revoked only to the extent Will #2 is inconsistent with it; both wills would be operative on G’s death, to the extent they are not inconsistent. As to the devise of the antique desk, Will #2 is inconsistent with Will #1, and the antique desk would go to X. There being no residuary clause in Will #2, there is nothing in Will #2 that is inconsistent with the residuary clause in Will #1, and so the residue would go to C.
The more difficult question relates to the cash devises in the two wills. The question whether they are inconsistent with one another is a question of interpretation in the individual case. Section 2-507 does not establish a presumption one way or the other on that question. If the court finds that the cash devises are inconsistent with one another, i.e., if the court finds that the cash devise in Will #2 was intended to replace rather than supplement the cash devise in Will #1, then B takes $10,000. But, if the court finds that the cash devises are not inconsistent with one another, B would take $30,000.
Revocatory Act. In the case of an act of revocation done to the document, subsection (a)(2) is revised to provide that a burning, tearing, or canceling is a sufficient revocatory act even though the act does not touch any of the words on the will. This is consistent with cases on burning or tearing (e.g., White v. Casten, 46 N.C. 197 (1853) (burning); Crampton v. Osburn, 356 Mo. 125, 201 S.W.2d 336 (1947) (tearing)), but inconsistent with most, but not all, cases on cancellation (e.g., Yont v. Eads, 317 Mass. 232, 57 N.E.2d 531 (1944); Kronauge v. Stoecklein, 33 Ohio App.2d 229, 293 N.E.2d 320 (1972); Thompson v. Royall, 163 Va. 492, 175 S.E. 748 (1934); contra, Warner v. Warner’s Estate, 37 Vt. 356 (1864)). By substantial authority, it is held that removal of the testator’s signature – by, for example, lining it through, erasing or obliterating it, tearing or cutting it out of the document, or removing the entire signature page – constitutes a sufficient revocatory act to revoke the entire will. Board of Trustees of the University of Alabama v. Calhoun, 514 So.2d 895 (Ala.1987) and cases cited therein.
Subsection (a)(2) is also revised to codify the “conscious-presence” test. As revised, subsection (a)(2) provides that, if the testator does not perform the revocatory act, but directs another to perform the act, the act is a sufficient revocatory act if the other individual performs it in the testator’s conscious presence. The act need not be performed in the testator’s line of sight. See the Comment to Section 2-502 for a discussion of the “conscious-presence” test.
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Revocatory Intent. To effect a revocation, a revocatory act must be accompanied by
revocatory intent. Determining whether a revocatory act was accompanied by revocatory intent
may involve exploration of extrinsic evidence, including the testator’s statements as to intent.
Partial Revocation. This section specifically permits partial revocation.
Dependent Relative Revocation. Each court is free to apply its own doctrine of dependent relative revocation. See generally Palmer, “Dependent Relative Revocation and Its Relation to Relief for Mistake,” 69 Mich. L. Rev. 989 (1971). Note, however, that dependent relative revocation should less often be necessary under the revised provisions of the Code. Dependent relative revocation is the law of second best, i.e., its application does not produce the result the testator actually intended, but is designed to come as close as possible to that intent. A precondition to the application of dependent relative revocation is, or should be, good evidence of the testator’s actual intention; without that, the court has no basis for determining which of several outcomes comes the closest to that actual intention.
When there is good evidence of the testator’s actual intention, however, the revised provisions of the Code would usually facilitate the effectuation of the result the testator actually intended. If, for example, the testator by revocatory act revokes a second will for the purpose of reviving a former will, the evidence necessary to establish the testator’s intent to revive the former will should be sufficient under Section 2-509 to effect a revival of the former will, making the application of dependent relative revocation as to the second will unnecessary. If, by revocatory act, the testator revokes a will in conjunction with an effort to execute a new will, the evidence necessary to establish the testator’s intention that the new will be valid should, in most cases, be sufficient under Section 2-503 to give effect to the new will, making the application of dependent relative revocation as to the old will unnecessary. If the testator lines out parts of a will or dispositive provision in conjunction with an effort to alter the will’s terms, the evidence necessary to establish the testator’s intention that the altered terms be valid should be sufficient under Section 2-503 to give effect to the will as altered, making dependent relative revocation as to the lined-out parts unnecessary.
Partial Revocation. This section specifically permits partial revocation.
Dependent Relative Revocation. Each court is free to apply its own doctrine of dependent relative revocation. See generally Palmer, “Dependent Relative Revocation and Its Relation to Relief for Mistake,” 69 Mich. L. Rev. 989 (1971). Note, however, that dependent relative revocation should less often be necessary under the revised provisions of the Code. Dependent relative revocation is the law of second best, i.e., its application does not produce the result the testator actually intended, but is designed to come as close as possible to that intent. A precondition to the application of dependent relative revocation is, or should be, good evidence of the testator’s actual intention; without that, the court has no basis for determining which of several outcomes comes the closest to that actual intention.
When there is good evidence of the testator’s actual intention, however, the revised provisions of the Code would usually facilitate the effectuation of the result the testator actually intended. If, for example, the testator by revocatory act revokes a second will for the purpose of reviving a former will, the evidence necessary to establish the testator’s intent to revive the former will should be sufficient under Section 2-509 to effect a revival of the former will, making the application of dependent relative revocation as to the second will unnecessary. If, by revocatory act, the testator revokes a will in conjunction with an effort to execute a new will, the evidence necessary to establish the testator’s intention that the new will be valid should, in most cases, be sufficient under Section 2-503 to give effect to the new will, making the application of dependent relative revocation as to the old will unnecessary. If the testator lines out parts of a will or dispositive provision in conjunction with an effort to alter the will’s terms, the evidence necessary to establish the testator’s intention that the altered terms be valid should be sufficient under Section 2-503 to give effect to the will as altered, making dependent relative revocation as to the lined-out parts unnecessary.
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