Waking the Dead: An Empirical Analysis of Revival of Wills

Adam J. Hirsch - University of San Diego School of Law
Vol. 53
June 2020
Page 2269

The problem of revival arises when a testator executes a first will, subsequently executes a second will that functions to revoke the first one by subsequent executed writing, and then later revokes the second will by act. Does this sequence of events reinstate the first will (“revival”) or leave the testator intestate (“anti-revival”)? Most states, together with the Uniform Probate Code, create either a conclusive or rebuttable presumption of anti-revival. This Article argues that, as a matter of policy, lawmakers should impose whichever presumption most testators would assume to apply, in order to minimize the risk of error. The Article presents evidence from an electronic survey finding that around seventy-five percent of respondents believe that this scenario would result in the revival of their first wills. This evidence indicates that a presumption of revival would correspond with popular assumptions and should replace the prevailing presumption of anti-revival. The Article further argues that the presumption should be rebuttable, in order to maintain consistency with other elements of the law of will revocation. Finally, the Article explores the significance of the lopsidedness of the data and applies Bayesian probability theory to suggest the possibility of imposing a clear-and-convincing evidence standard when a “supermajoritarian” default is discovered to exist — a contribution to default rule theory.

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