§ 311 REVIVAL

• Jurisdiction: South Carolina
• Section: Chapter 3 Wills

§ 311 Revival

If a subsequent will that completely revoked a prior will is itself revoked by physical act, the SCPC does not revive the prior will unless the intent of the testator to revive is proved by clear and convincing evidence.¹¹² As a result of the 2013 amendments, section 2-508 distinguishes whether the subsequent will

completely or partially revoked the prior will and whether the subsequent will is revoked by a third will or by one of the physical acts allowed by section 2-506(a)(2).¹¹³ If the subsequent will, which completely revoked the prior will, was itself revoked by a physical act, then the prior will is not revived without clear and convincing evidence of the testator's intent to revive the prior will. If the subsequent will was a codicil, which was revoked by a physical act, then the statute revives that part of the prior will partially revoked by the codicil unless clear and convincing evidence demonstrates the testator's intent not to revive the part of the prior will that was revoked. If a subsequent will that revoked a prior will in whole or part is itself revoked by a third will, the Code does not revive the prior (first) will except to the extent indicated by the third will.¹¹⁴

The difference in the presumptive results between the revocation by physical act of a second will that completely revoked the prior will versus a second will that only partially revoked the prior will apparently rests on a practical distinction. If a second will—a codicil—only partially revokes the prior will, both wills must be presented for probate because both wills are necessary to provide a complete explanation of the testator's dispositive scheme. The prior will controls those dispositions not revoked by the codicil, and the codicil controls those dispositions revoked by the codicil. Section 2-508 thus recognizes the cohesive interaction of the prior will and the codicil. Because the prior will always retains some validity, it seems reasonable to revive its revoked provisions if the codicil is removed from play. However, when the revoking will—a new will—completely revokes the prior will, the prior will no longer retains validity. Thus, the difference in the treatment between revocation by physical act of second wills completely revoking prior wills versus a similar revocation by codicil recognizes that prior wills partially revoked by codicil nevertheless retain some validity all along.

The difference in the treatment between second wills revoked by...