SECTION 2-509. REVIVAL OF REVOKED WILL.
(a) If a subsequent will that wholly revoked a previous will is thereafter revoked by a revocatory act under Section 2-507(a)(2), the previous will remains revoked unless it is revived. The previous will is revived if it is evident from the circumstances of the revocation of the subsequent will or from the testator’s contemporary or subsequent declarations that the testator
(a) If a subsequent will that wholly revoked a previous will is thereafter revoked by a revocatory act under Section 2-507(a)(2), the previous will remains revoked unless it is revived. The previous will is revived if it is evident from the circumstances of the revocation of the subsequent will or from the testator’s contemporary or subsequent declarations that the testator
151
intended the previous will to take effect as executed.
(b) If a subsequent will that partly revoked a previous will is thereafter revoked by a
revocatory act under Section 2-507(a)(2), a revoked part of the previous will is revived unless it is evident from the circumstances of the revocation of the subsequent will or from the testator’s contemporary or subsequent declarations that the testator did not intend the revoked part to take effect as executed.
(c) If a subsequent will that revoked a previous will in whole or in part is thereafter revoked by another, later will, the previous will remains revoked in whole or in part, unless it or its revoked part is revived. The previous will or its revoked part is revived to the extent it appears from the terms of the later will that the testator intended the previous will to take effect.
Comment
Purpose and Scope of Revisions. Although a will takes effect as a revoking instrument when it is executed, it takes effect as a dispositive instrument at death. Once revoked, therefore, a will is ineffective as a dispositive instrument unless it has been revived. This section covers the standards to be applied in determining whether a will (Will #1) that was revoked by a subsequent will (Will #2), either expressly or by inconsistency, has been revived by the revocation of the subsequent will, i.e., whether the revocation of Will #2 (the revoking will) revives Will #1 (the will that Will #2 revoked).
As revised, this section is divided into three subsections. Subsections (a) and (b) cover the effect of revoking Will #2 (the revoking will) by a revocatory act under Section 2-507(a)(2). Under subsection (a), if Will #2 (the revoking will) wholly revoked Will #1, the revocation of Will #2 does not revive Will #1 unless “it is evident from the circumstances of the revocation of [Will #2] or from the testator’s contemporary or subsequent declarations that the testator intended [Will #1] to take effect as executed.” This standard places the burden of persuasion on the proponent of Will #1 to establish that the decedent’s intention was that Will #1 is to be his or her valid will. Testimony regarding the decedent’s statements at the time he or she revokes Will #2 or at a later date can be admitted. Indeed, all relevant evidence of intention is to be considered by the court on this question; the open-ended statutory language is not to be undermined by translating it into discrete subsidiary elements, all of which must be met, as the court did in Estate of Boysen, 309 N.W.2d 45 (Minn.1981). See Langbein & Waggoner, “Reforming the Law of Gratuitous Transfers: The New Uniform Probate Code,” 55 Alb. L. Rev. 871, 885-87 (1992).
The pre-1990 version of this section did not distinguish between complete and partial
(b) If a subsequent will that partly revoked a previous will is thereafter revoked by a
revocatory act under Section 2-507(a)(2), a revoked part of the previous will is revived unless it is evident from the circumstances of the revocation of the subsequent will or from the testator’s contemporary or subsequent declarations that the testator did not intend the revoked part to take effect as executed.
(c) If a subsequent will that revoked a previous will in whole or in part is thereafter revoked by another, later will, the previous will remains revoked in whole or in part, unless it or its revoked part is revived. The previous will or its revoked part is revived to the extent it appears from the terms of the later will that the testator intended the previous will to take effect.
Comment
Purpose and Scope of Revisions. Although a will takes effect as a revoking instrument when it is executed, it takes effect as a dispositive instrument at death. Once revoked, therefore, a will is ineffective as a dispositive instrument unless it has been revived. This section covers the standards to be applied in determining whether a will (Will #1) that was revoked by a subsequent will (Will #2), either expressly or by inconsistency, has been revived by the revocation of the subsequent will, i.e., whether the revocation of Will #2 (the revoking will) revives Will #1 (the will that Will #2 revoked).
As revised, this section is divided into three subsections. Subsections (a) and (b) cover the effect of revoking Will #2 (the revoking will) by a revocatory act under Section 2-507(a)(2). Under subsection (a), if Will #2 (the revoking will) wholly revoked Will #1, the revocation of Will #2 does not revive Will #1 unless “it is evident from the circumstances of the revocation of [Will #2] or from the testator’s contemporary or subsequent declarations that the testator intended [Will #1] to take effect as executed.” This standard places the burden of persuasion on the proponent of Will #1 to establish that the decedent’s intention was that Will #1 is to be his or her valid will. Testimony regarding the decedent’s statements at the time he or she revokes Will #2 or at a later date can be admitted. Indeed, all relevant evidence of intention is to be considered by the court on this question; the open-ended statutory language is not to be undermined by translating it into discrete subsidiary elements, all of which must be met, as the court did in Estate of Boysen, 309 N.W.2d 45 (Minn.1981). See Langbein & Waggoner, “Reforming the Law of Gratuitous Transfers: The New Uniform Probate Code,” 55 Alb. L. Rev. 871, 885-87 (1992).
The pre-1990 version of this section did not distinguish between complete and partial
152
revocation. Regardless of whether Will #2 wholly or partly revoked Will #1, the pre-1990
version presumed against revival of Will #1 when Will #2 was revoked by act.
As revised, this section properly treats the two situations as distinguishable. The presumption against revival imposed by subsection (a) is justified because where Will #2 wholly revoked Will #1, the testator understood or should have understood that Will #1 had no continuing effect. Consequently, subsection (a) properly presumes that the testator’s act of revoking Will #2 was not accompanied by an intent to revive Will #1.
Subsection (b) establishes the opposite presumption where Will #2 (the revoking will) revoked Will #1 only in part. In this case, the revocation of Will #2 revives the revoked part or parts of Will #1 unless “it is evident from the circumstances of the revocation of [Will #2] or from the testator’s contemporary or subsequent declarations that the testator did not intend the revoked part to take effect as executed.” This standard places the burden of persuasion on the party arguing that the revoked part or parts of Will #1 were not revived. The justification is that where Will #2 only partly revoked Will #1, Will #2 is only a codicil to Will #1, and the testator knows (or should know) that Will #1 does have continuing effect. Consequently, subsection (b) properly presumes that the testator’s act of revoking Will #2 (the codicil) was accompanied by an intent to revive or reinstate the revoked parts of Will #1.
Subsection (c) covers the effect on Will #1 of revoking Will #2 (the revoking will) by another, later, will (Will #3). Will #1 remains revoked except to the extent that Will #3 shows an intent to have Will # 1 effective.
Historical Note. This Comment was revised in 1993. For the prior version, see 8 U.L.A. 118 (Supp.1992).
As revised, this section properly treats the two situations as distinguishable. The presumption against revival imposed by subsection (a) is justified because where Will #2 wholly revoked Will #1, the testator understood or should have understood that Will #1 had no continuing effect. Consequently, subsection (a) properly presumes that the testator’s act of revoking Will #2 was not accompanied by an intent to revive Will #1.
Subsection (b) establishes the opposite presumption where Will #2 (the revoking will) revoked Will #1 only in part. In this case, the revocation of Will #2 revives the revoked part or parts of Will #1 unless “it is evident from the circumstances of the revocation of [Will #2] or from the testator’s contemporary or subsequent declarations that the testator did not intend the revoked part to take effect as executed.” This standard places the burden of persuasion on the party arguing that the revoked part or parts of Will #1 were not revived. The justification is that where Will #2 only partly revoked Will #1, Will #2 is only a codicil to Will #1, and the testator knows (or should know) that Will #1 does have continuing effect. Consequently, subsection (b) properly presumes that the testator’s act of revoking Will #2 (the codicil) was accompanied by an intent to revive or reinstate the revoked parts of Will #1.
Subsection (c) covers the effect on Will #1 of revoking Will #2 (the revoking will) by another, later, will (Will #3). Will #1 remains revoked except to the extent that Will #3 shows an intent to have Will # 1 effective.
Historical Note. This Comment was revised in 1993. For the prior version, see 8 U.L.A. 118 (Supp.1992).
No comments:
Post a Comment