Chapter 4

COL12010615GCA ESTATES AND PROBATE CH.4REVOCATION OF WILLS 1CHAPTER 4 REVOCA TION OF WILLS § 401. Marriage After Making W ill: W ill Revoked as to Spouse. § 403. Divorce After Making Will: Will Revoked as to Former Spouse. § 405. Marriage After Making W ill: W ill Revoked as to Issue of Marriage. § 407. Effect of Instr ument Alter ing Inter est in Property Which was Previously Disposed of by Will. § 409. Effect of Contract for Sale or Transfer of Property Which was Previously Disposed of by Will. § 411. Effect of Charge or Encumbrance on Property Which was Previously Dispo sed of by Will. § 413. Methods of Formal Revocation of Written Will. § 415. Effect of Revocation of Subsequent Will. § 417. Effect of Revocation of Duplicate Will. § 419. Revocation of Will Revokes its Codicils. § 401. Marriage After Making Will: Will R evoked as to Spouse. If a testator marries after making a will, and the spouse of that marriage survives the testator, the will is revoked as to such spouse, unless provision has been made for such spouse by marriage contract, or unless such spouse is pro vided for in the will, or in such way mentioned therein as to show an inten tion not to ma ke such provi

ess provision has been made for such spouse by marriage contract, or unless such spouse is pro vided for in the will, or in such way mentioned therein as to show an inten tion not to ma ke such provi sion; and no other evidence to rebut the presumption of revoca tion can be received. SOURCE : Probate Code of Guam (1970), § 70. COMMENT : The purpose of § 401 is to protect the widow or widower of a testator who made his or her will before the marriage; see In re Poisl's Estate (1955), 44 C.2d 147, 280 P .2d 789, wherein the court held that the purpose of the similar California statute was to secure a spec ific moral influence on the testamentary act of having in mind a contingent event as momen tous as marriage. Although perhaps confusing at first read ing, § 401 operates as follows: Assume that W makes a will in which her entire estate is bequeathed to X; then W marries H; then W dies. By the operation of § 401, W's will is revoked as to H, so that H takes from W's estate under the law of succession and X takes the balance (if any) under W's will. However, if W and H had entered into a marriage contract by the terms of which H would be provided for in the event of W's death; or if

of succession and X takes the balance (if any) under W's will. However, if W and H had entered into a marriage contract by the terms of which H would be provided for in the event of W's death; or if W's will provided some bequest for H; or if W's will showed an intention not to make a provision for H; then § 401 would not apply --i.e., the will would not be revoked as to H, and its COL12010615GCA ESTATES AND PROBATE CH.4REVOCATION OF WILLS 2provisions would govern. An excellent summary of the various types of will provi - sions which A...show an intention not to make ... provision... @for the surviving spouse is set forth in the discussion following § 70 of the California Probate Code in West's Annotated California Codes. Also see Com ments to §§ 403 and 405, infra. § 403. Divorce After Making Will: Will Re voked as to Former Spouse. If a married testator makes a will and is subsequently di vorced, and the person whose marriage to the te stator was dissolved by such divorce survives the testator, the will is revoked as to such former spouse, unless the will shows a specific intent to the contrary; and no other evidence to rebut the presumption of revocation can be received.

ives the testator, the will is revoked as to such former spouse, unless the will shows a specific intent to the contrary; and no other evidence to rebut the presumption of revocation can be received. SOURCE : Guam L aw Revision Commission. COMMENT : Section 403 provides the opposite side of the coin from § 401, supra. Under the provisions of § 401, if a person makes a will, marries, and then dies without providing for his spouse, the spouse takes some portion of the es tate by the law of succession. This seems only fair; as pointed out in the Com ment to § 401, that Section exists to protect the surviving spouse, as it inserts into the law a presump tion that the testator must have intended to provide for his spouse following the momentous event of marriage, but for some reason did not do so. Similarly , § 403 inserts into the law a presumption that a married testator who is subse quently divorced must have intended to revoke his will insofar as it provided for his former spouse following the momentous event of divorce, but for some reason did not do so. In other words, § 401 protects the spouse, while § 403 protects the testator. § 405.

as it provided for his former spouse following the momentous event of divorce, but for some reason did not do so. In other words, § 401 protects the spouse, while § 403 protects the testator. § 405. Marriage After Making Will: Will Re voked as to Issue of Marriage. If a testator marri es after making a will and has issue of such marriage, and any of the issue survives the testator, or is born after the death of the testator, the will is revoked as to such issue, unless provi sion has been ma de for such issue by some settlement, or unles s such issue areprovided for in the will, or in such way men tioned ther ein as to show an intention not to make such provision; and no other evidence to rebut the pre sumption of such revocation can be received. SOURCE : Probate Code of Guam (1970), § 71. COMMENT : The purpose of § 405 is similar to that of § 401: it protects the testator's issue against receiving nothing from their parent's estate by such parent's making a will before the issue's birth, which will fails to include such issue. Also see Comm ent to § 401, supra. COL12010615GCA ESTATES AND PROBATE CH.4REVOCATION OF WILLS 3Section 71 of the Probate Code of Guam (1970) read, in

's birth, which will fails to include such issue. Also see Comm ent to § 401, supra. COL12010615GCA ESTATES AND PROBATE CH.4REVOCATION OF WILLS 3Section 71 of the Probate Code of Guam (1970) read, in pertinent part, A... or is born after its father's death... @(emphasis added.) Section 405 has been changed to make it sex -neutral, after the model of § 71 of the California Proba te Code as amended in 1975, and as required by Public Law 14 -28. § 407. Effect of Instrument Altering Interest in Proper ty Which was Previously Disposed of by Will. If a testator who has made a testamentary disposition of property subsequently executes a n instrument which alters his interest in such proper ty, such instrument operates as a revoca tion of such testamenta ry disposition if: (a) such instrument expresses the testator's intent that it shall be a revocation; or (b) such instrument contains pr ovisions wholly incon sistent with the terms of such testa mentary disposition, unless such inconsistent provisions depend on a condition or contingency by reason of which such inconsistent provisions do not take effect.

sistent with the terms of such testa mentary disposition, unless such inconsistent provisions depend on a condition or contingency by reason of which such inconsistent provisions do not take effect. SOURCE : Probate Code of Guam (1970 ), § 73; California Probate Code, § 73; Guam Law Revision Commission. § 409. Effect of Contract for Sale or Transfer of Property Which was Previously Disposed of by Will. If a testator who has made a testamentary disposition of property subsequently enters into an agreement for the sale or transfer of such property , such agreement does not revoke such disposition; but such property passes by the will, subject to the same remedies on the testa tor's agree ment, for specific performance or other wise, against the devisees or legatees of such property , as might be had against the testator's successors, if such property had passed by succession. SOURCE : Probate Code of Guam (1970), § 77. § 411. Effect of Charge or Encumbrance on Property Which was Previously Di sposed of by Will. If a testator who has made a testamentary disposition of property subsequently places a charge or encumbrance on such property for the purpose of securing the payment of

viously Di sposed of by Will. If a testator who has made a testamentary disposition of property subsequently places a charge or encumbrance on such property for the purpose of securing the payment of money or the performance of any covenant or agreement, neither such a charge or encumbrance nor a conveyance, settlement or other act of the testator, by which his interest in any such property is altered but not fully divested, is a revoca tion of COL12010615GCA ESTATES AND PROBATE CH.4REVOCATION OF WILLS 4such testamentary disposition; but such property , subject to such charge or encum brance, or the testator's remaining interest in such property , passes by the will. SOURCE : Probate Code of Guam (1970), § 78. § 413. Methods of Formal Revocation of Writ ten Will. (a) Except as hereinabove provided in this Chapter, no written will, nor any part thereof, can be revoked or altered otherwise than as set forth in subsec tions (a)(1) or (a)(2) of this Section: (1) By a subsequent written will or other writing of the testator, executed with the same formalities required for the execution of a will, declaring such revocation or altera tion, or containing provisions wholly inconsis tent

will or other writing of the testator, executed with the same formalities required for the execution of a will, declaring such revocation or altera tion, or containing provisions wholly inconsis tent with the terms of the prior will. If, in the latter case, the subsequent will or other writing contains provisions not wholly incon sistent with the terms of theprior will, the prior will remains effectual so far as consis tent with the provisions of the subse quent will; but the mere naming of an executor in the prior will need not be given effect by the Superior Court of Guam when the subsequent will is oth erwise wholly inconsistent with the terms of the prior will, the intention of the testator in this respect being left to the determination of the Superior Court of Guam. (2) By being burned, torn, canceled, defaced, obliterat ed or destroyed, with the int ent and for the purpose of revoking the same, by the testator himself, or by some person in the testator's presence and by the testator's direction. If the act is done by any person other than the testator, the direction of the testator and the fact of suc h injury or destruction must be proved by two (2) witnesses.

d by the testator's direction. If the act is done by any person other than the testator, the direction of the testator and the fact of suc h injury or destruction must be proved by two (2) witnesses. (b) Notwithstanding the provisions of sub section (a) of this Section, a holographic will may be altered pursuant to the provisions of subsection (c) of Section 207 of this Title. SOURCE : Subs ection (a)(1): Probate Code of Guam (1970), §§ 74, 72; California Probate Code, §§ 74, 72. Subsection (a)(2): Probate Code of Guam (1970), § 74; California Probate Code, § 74. Subsection (b): Guam Law Revision Commis sion. COMMENT : The Commission has subsu med §§ 72 and 74 of the Probate Code of Guam (1970) into subsection (a) of § 413, as it appears that prior § 72 does no more than amplify on the principles set forth in prior § 74(1). This being the case, it seems more logical to have all of the provisions relating to the same general COL12010615GCA ESTATES AND PROBATE CH.4REVOCATION OF WILLS 5subject -matter area in the same Section in order to facilitate finding the law , and to clarify the law in the area.

g to the same general COL12010615GCA ESTATES AND PROBATE CH.4REVOCATION OF WILLS 5subject -matter area in the same Section in order to facilitate finding the law , and to clarify the law in the area. In addition, the Commis sion has added subsection (b), to cause § 413 to comport with § 207, supra. § 415. Ef fect of Revocation of Subsequent Will. If, after making a will, the testator makes a second will, the destruc - tion or other revoca tion of such second will does not revive the first will, unless it appears by the terms of such revoca tion that it was the t estator's intention to revive and give effect to the first will, or unless, after the destruction or other revocation of such second will, the first will is duly republished. SOURCE : Probate Code of Guam (1970), § 75. § 417. Effect of Revocation of Duplic ate Will. A will executed in duplicate is revoked if one of the duplicates is burned, torn, canceled, de faced, obliterated or destroyed under the cir - cumstances mentioned in subsection (a)(2) of Section 413 of this Title. SOURCE : Probate Code of Guam (19 70), § 76. § 419. Revocation of Will Revokes its Codicils. The revocation of a will revokes all its codicils.

oned in subsection (a)(2) of Section 413 of this Title. SOURCE : Probate Code of Guam (19 70), § 76. § 419. Revocation of Will Revokes its Codicils. The revocation of a will revokes all its codicils. SOURCE : Probate Code of Guam (1970), § 79. ----------