The Codicil, the Blended Family, and the Missing Heir
T executed a will in 2018 leaving 'all my property to my spouse S and my children A and B, per stirpes.' T and S had A and B. T and S divorced in 2021, and T married R in 2022. In 2023 T executed a codicil that revoked 'all provisions for S' and left 'the residue to R and my descendants.' The codicil was witnessed by two people, one of whom was R's sister. T had a child C, born in 2015, from a prior relationship. Neither the will nor the codicil mentions C. T died in 2024 survived by R, A, B, C, and S. The estate is $1.2 million. Assume the jurisdiction has enacted the UPC. Under the UPC, divorce revokes all provisions for the former spouse; an interested witness does not invalidate a will, but a devise to the witness is void unless the witness would take under intestacy; a pretermitted-child claim requires the child to be born or adopted after the will's execution.
1. What is the effect of T's divorce from S on the 2018 will?
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Under the UPC, T's divorce from S in 2021 revoked all provisions for S in the 2018 will. The will remains valid as to A and B. S takes nothing under the will. The divorce does not revoke the entire will. The 2023 codicil also revoked all provisions for S, which is consistent. The original will's residue clause, after removal of S, would otherwise pass to A and B per stirpes. But the codicil later replaces the residue clause, so the codicil controls.
2. Is the 2023 codicil valid, and what is the effect of R's sister serving as a witness?
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The codicil is valid. It was signed by T and witnessed by two people. R's sister is not a devisee under the codicil; she is only a relative of a devisee. Under the UPC, an interested witness is one who is also a devisee. Even if she were interested, the UPC does not invalidate the will; it voids the devise to that witness unless the witness would take under intestacy. Because R's sister takes nothing, her witness status does not affect the codicil. If the jurisdiction used the common-law interested-witness rule, the result might differ, but the question says UPC. The codicil's revocation of provisions for S is effective, and its residue clause controls.
3. What share, if any, does C take, and how should the estate be distributed?
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C was born in 2015, before the 2018 will, so C is not a pretermitted child under the UPC's after-born child rule. C does not take an intestate share by that route. But the codicil's residue clause leaves the residue to R and T's descendants. C is a descendant. The class gift includes C. The residue is therefore divided among R, A, B, and C. Absent contrary language, the UPC's class-gift rules divide the residue equally among the named individual and the class members, so each takes $300,000. S takes nothing. If the court found the clause ambiguous, it could admit extrinsic evidence of T's intent, but the plain text includes C.