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This guide delves into the requirements for revoking a will by physical act, such as mental capacity, intent, and the act itself as stated in relevant legal codes. We explore problems associated with revocation when intent and physical actions conflict, including remedies for evil conduct and the concept of constructive trusts. Additionally, we examine how partial revocation can be executed, including examples of effective and ineffective revocations. The intricacies of both typed and holographic wills are also discussed in the context of these actions.
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Requirements to Revoke by Physical Act • 1. Mental Capacity
Requirements to Revoke by Physical Act • 2. Revocation Intent
Requirements to Revoke by Physical Act • 3. Physical Act – PC § 63; EC § 253.002 • “destroying or canceling” • By testator, or • By proxy in testator’s presence.
Requirements to Revoke by Physical Act • 4. Concurrence of first three requirements.
Remedy if intent and physical act do not mesh • 1. If no evil conduct • No remedy – will is not revoked.
Remedy if intent and physical act do not mesh • 2. If evil conduct • Constructive trust. • Morris v. Morris – p. 174
Partial revocation by physical act • Examples: • I leave $10,000 to Walter Bishop • I leave $10,000 to each of Walter Bishop and Peter Bishop. • Approaches: • Effective to revoke gift • No effect on gift
Partial revocation by physical act • Texas • Typed will – Leatherwood v. Stephens – p. 177 • Holographic will
Partial revocation by physical act 1. I leave my house to X. 2. I leave $10,000 to Y. 3. I leave the rest to Z. What result?
