Barry Cushman, ‘The Decline of Revocation by Physical Act’

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 the revocation of wills by physical act has become badly out of phase with the law governing nonprobate transfers, which as a general matter requires that an instrument of transfer be revoked only by a writing signed by the transferor. This article surveys the place of revocation by physical act in the law governing will substitutes, such as payable-on-death designations on bank accounts; transfer-on-death designations on brokerage accounts; life insurance and annuities; beneficiary deeds; and revocable trusts. Revocation by physical act is available with respect to none of the first four types of nonprobate transfer; meanwhile, revocation of revocable trusts by physical act is now effectively defunct in nearly half of the states. Because the donative transfer of most wealth in the United States takes place through will substitutes rather than through the probate system, the role of revocation by physical act in the law of succession is thus one of diminishing significance. Revocation by physical act is a legal institution in decline, and increasingly an anomaly within the law of gratuitous transfers. The outstanding question is whether, and if so, to what extent and in what form, that anomaly is worthy of preservation.

Cushman, Barry, The Decline of Revocation by Physical Act (January 16, 2020). 54 Real Property, Trusts and Estates Law Journal 243 (2019).

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