Document Type
Article
Publication Date
2025
Publication Information
60 Real Prop. Tr. & Est. L.J. 273 (2025).
Abstract
The power to revoke one’s will by physical act was enshrined in Anglo-American law in 1677 by the Statute of Frauds. It remains the law in Great Britain, in such developed Commonwealth countries as Canada, Australia, and New Zealand, and in each of the United States of America. Yet revocation by physical act creates numerous perplexities in the law, is badly out of phase with the law governing non-probate transfers, has become increasingly anomalous within the law of wills itself, and is in need of reform.
In a previous article, The Decline of Revocation by Physical Act, I documented the ways in which statutes authorizing the revocation of wills by physical act are inconsistent with the law concerning revocation of instruments of non-probate transfer. There I concluded that “neither contracts with POD designations, nor brokerage accounts with TOD designations, nor beneficiary deeds, nor life insurance policies, nor annuity contracts may be revoked by physical act.” Moreover, in “nearly half of the states, revocable trusts may not be revoked by physical act, and there are no reported decisions in which a court has held that a trust has been so revoked. The law on non-probate transfers thus has largely rejected the longstanding testamentary law authorizing revocation by physical act. In an era in which the law of wills and the law of will substitutes is becoming increasingly harmonized, the option to revoke one’s will by physical act had become increasingly anomalous. The outstanding question is whether, and if so, to what extent and in what form, that anomaly is worthy of preservation.”
This Article begins the exploration of that question by documenting the various pathologies of revocation of wills by physical act. An examination of the case law indicates that rules concerning such revocations often fall short of effectuating the intent of the testator.
Recommended Citation
Barry Cushman,
The Pathologies of Revocation by Physical Act,
60 Real Prop. Tr. & Est. L.J. 273 (2025)..
Available at:
https://scholarship.law.nd.edu/law_faculty_scholarship/1966