Class 15

A. 2-509 Revival of a Revoked Will

a. If subsequent will (W2) that wholly revoked previous will (W1) is thereafter revoked by a
revocatory act, previous will (W1) remains revoked unless it is revived. Revived if
evident from circumstances of revocation of subsequent will (W2) or from testator’s
contemporary or subsequent declarations that testator intended previous will (W1) to
take effect as executed
i. Presumption of revocation
b. If subsequent will (W2) that partly revoked previous will (W1) is revoked by a
revocatory act, a revoked part of the previous will (W1) is revived unless testator did
not intend revoked part to take effect
i. Presumption of revival
c. If a subsequent will (W2) that revoked a previous will (W1) in whole or in part is
thereafter revoked by another, later, will, (W3) the previous will (W1) remains revoked
in whole or in part, unless it or its revoked part is revived. The previous will (W1) or its
revoked part is revived to the extent is appears from the terms of the later will (W3)
that the testator intended the previous will (W1) to take effect
B. Problems p. 361
a. Problem 1
i. 2-509(a) scenario – when W2 is revoked, W1 remains revoked unless
revivedestate passes via intestacy
ii. 2-509(b) scenario—presumption of revival, part of W1 revived when W2
destroyed
b. Problem 2
i. W1tangible personal property to daughter and rest to univ.
ii. W2all property to daughter D
iii. W3I revoke W2 and leave all property to grandson
iv. 2-509(c)W1 remains revoked, W2 is revoked
C. Dependent Relative Revocation
a. Of an apparent revocation, never really took effect at all
b. Rest. (Third) of Property
i. A partial or complete revocation of a will is presumptively ineffective if the
testator made the revocation:
1. In connection with an attempt to achieve a dispositive objective that
fails under applicable law, or
2. Because of a false assumption of law, or because of a false belief about
an objective fact, that is either recited in the revoking instrument or
established by clear and convincing evidence
ii. The presumption established in (a) is rebutted if allowing the revocation to
remain in effect would be more consistent with testator’s probably intention
c. Olivia-Foster v. Olivia IN CoA 2008
i. Dependent relative revocation applied to revived father’s will
ii. 1995 will naming spouse as beneficiary, new will executed in 2002
iii. Children argued 1995 will revoked, 2002 will invalidshould pass via intestacy
 iv. Spouseeven if 2002 will invalid, 1995 will would be revived by DRRif a
testator mutilates or destroys a will with a present intention of making a new
one immediately and as a substitute, the new will is not made or fails of effect,
it will be presumed testator preferred old will to intestacy
d. Structure of DRR thinking
i. DRR is second best:
1. Because it assumes (a) we know what T wanted and (b) we know that T
can’t get what T wanted
ii. DRR always tripartite with best solution barred: What T wanted, earlier will,
intestacy
e. Problems p. 364
i. Problem 1
1. W1—all to Judith
2. W2—91% to J, 9% to kids [invalid because not signed in front of
witnesses]
3. Intestacyhalf to Judith, half to kids
4. DRRacting under assumption that W2 was valid when it wasn’t, would
rather have W1 than intestacy because it’s closer to what was really
wanted by testator
ii. Problem 2
1. W1—all to J
2. W2—all to kids
3. Tears up 1995 will expressing that doesn’t want wife to get
moneywould court apply DRR?-->would say that this revocation is
effective in order to arrive at intestacy
f. Problems p. 365
i. Problem 1
1. W1all to daughter
2. W23/4 to daughter, ¼ to son
3. Later tore up W2, saying wanted to revive W1under 2-509(a), that
works
4. If using DDR in a jurisdiction where can’t revive revoked will, as between
salvaging W2 which gives 75% to daughter and intestacy, which gives
50% to daughterwould salvage W2 by saying it was never revoked
ii. Problem 2
1. To friend F10,000
a. Crosses out 10k and writes in 15keffective partial revocation
b. Without DRR, has given Frank nothinginvoke to give Frank
10k to make the revocation ineffective
c. What if wrote in 2.5k?
i. 4.3b in the restatement says we should go with 0,
because closer to 0 than 10k

Class 16
A. Problem from last class: DRR
a. UPC writers hoped to mitigate it, but it still continues to be used/needed
i. Harmless error and revival/revocation
b. Rest. 3d Prop 4.3b endorses in cases where it’s needed
c. Testator crosses out 10k and substitutes 5k
i. Know Frank won’t get the 5k
ii. (b) either an invitation to extrinsic evidence or
iii. This is an indifferent mechanism, just ask how the possibilities work with
respect to b0, 10tie goes to Frank, (a) prevails because everything is equally
consistent under (b)
d. Revocation of a will is presumptively ineffective in connection with an attempt to
achieve an objective that fails or because of a false assumption of law or
factrebuttable with extrinsic evidence that allowing revocation would be more
consistent with testator’s probable intention
B. 2-514 Joint Wills and Will Contracts
a. A K to make a will or K not to revoke a will, or to die intestate, may be established only
by (i) provisions of a will stating material provisions of the K, (ii) an express reference in
a will to a K and extrinsic evidence proving the terms of the K, or (iii) a writing signed by
the decedent evidencing the K. The execution of a joint will or mutual wills does not
create a presumption of a K not to revoke the will or wills.
b. Provides security/confidence at time of execution for children brought into a marriage,
to prevent changing mindsbut one spouse can outlive another for several decades,
and things change, they may earn a lot of money after death for themselves
c. Guarantees that the second to die will receive virtually all of the net probate estate of
the first person to die, and then who receives all the net probate estate of the second to
die
d. Many courts see joint wills as will contracts, bound to do as will said
e. UPC: mere joint will doesn’t satisfy conditions of will contract, one party is free to
change dispositions
i. Disregards testamentary freedom and change in circumstances after agreement
ii. Clients should be advised about immutability and if they want it, to include
the K in the will and be explicit about it probability of it being binding on
second to die is uncertain
f. Mutual will is a reciprocal will that uses “I” but provisions mirror each othercan also
say things about residue and how percentages should be distributed, why this kind of
will is being generatednot sufficient to create a K
g. Garrett v. Read Kan. SC 2004
i. Lawyer prepared identical wills for spouses
ii. One spouse died and wife executed new will changing disposition of estate to
only her daughters
iii. Pl. alleged new will was invalid bc old will had been K-ualrely on reciprocal
provisions
iv. Lawyer testified an agreement existed
 v. Ct: extrinsic evidence admissible to show that separate wills which are mutual
and reciprocal in bequests and devises were executed in pursuance of an
agreement, evidence may be writings, acts, testimony, facts, and circumstances
vi. K-ual willwills nearly identical, Sarah retained right to disinherit her own
children/gc
vii. Constructive trust as remedypreference of self is made subordinate to loyalty
to others, forces legal owner of property to transfer property to someone else
to avoid unjust enrichment that would otherwise occur
h. Shimp v. Huff MD CoA 1989
i. Is Lester Shimp’s 2d wife entitled to an ES when Lester K-ed via joint will with 1st
wife to will entire estate to others
ii. Ct: ES wins, public policy of protecting surviving spouse’s right to receive
elective share and give it priority
1. Other states say the opposite
i. Problem 3 p.372
i. Would it be breach of K to devise lottery winnings to NYU? yes, K says has to
be devised a certain way
ii. Breach of K to devise to adopted child? wouldn’t be wildly inconsistent with
having kids be equal beneficiaries, but getting twice as much as other kids
iii. Nieces aren’t kids may violate K when supposed to be favoring kids equally
iv. More likely to be a breach than ^ because of the codicil
C. Jackie’s Will
a. “By this will, hereby revoke all previous wills” but where gives away everything, can
revoke by implication
b. Makes gifts
c. D designed to address lapse situationto children who survive me [meaning gc if they
don’t]
i. “sole and absolute discretion” means reasonable discretion, judged from the
POV of the beneficiaries when they have the resources to go after the executor
by the judge
d. Secondnot relatives, so if they die before, would go into residue unless otherwise
directed
e. Second singing is of a self-proving affidavit