Doctrine of Dependent Relative Revocation

When a person (testator) makes a last will and testament, it is customary that the will contain language that the new will revokes any and all prior wills signed by the testator.   The Uniform Probate Code holds that a new will can revoke prior wills even though it contains no other provisions stating that prior wills have been revoked.  If a person signs a new last will which revoked all prior wills, and destroyed all prior wills by burning, cancelling, tearing or obliterating them, then all prior wills would be deemed revoked.  Should a person die and the newly signed will was missing with no copies to be found, then the testator would be deemed to die intestate, or without a will.

On the other hand, if a person dies, and the most recently signed last will and testament is found to be invalid for any reason, such as undue influence, incompetency, or incomplete at the time of the signing of the new will by the testator, then it may be possible to invoke the Doctrine of Dependent Relative Revocation if there are duly signed prior wills that were not destroyed previously by the testator.  This doctrine has been applied when a person revoked a prior will in order to make a new will, but the testator did not complete the new will or the new will was found to be invalid.  If the Court finds that the testator’s intention was to revoke the prior will only if the new will was valid, then the Court may ignore the revocation of the prior will and give effect to that will so that the testator will not die intestate, or without any last will and testament in place.   

The Doctrine of Dependent Relative Revocation has been upheld in many courts since the early part of the eighteenth century.  Stewart v. Johnson, 194 So. 869 (Fla. 1940).  The doctrine was upheld in American Court decisions as a plausible legal theory to address certain circumstances by giving effect to a testator’s failed attempt to devise his property as he desired by reviving a similar prior testamentary instrument rather than have the property descend via the law of intestacy, where the decedent’s wishes are supplanted by legislative dictates. Wehrheim v. Golden Pond, 905 So.2d 1002 (Fla. 5th DCA 2005); and  Stewart v. Johnson, 194 So. 869 (Fla. 1940).  In Stewart, the Supreme Court adopted the Doctrine of Relative Revocation and explained:  “Stated simply, it means that where testator makes a new will revoking a former valid one, and it later appears that the new one is invalid, the old will may be re-established on the ground that the revocation was dependent upon the validity of the new one, testator preferring the old will to intestacy.”  Stewart v. Johnson, 194 So. 869 (Fla. 1940);  see also Wehrheim v. Golden Pond, 905 So.2d 1002 (Fla. 5th DCA 2005); and Denson v. Fayson, 525 So.2d 432 (Fla. 3rd DCA 1988)(“The applicable Doctrine of Dependent Relative Revocation provides that, where a testator revokes a valid will by an act other than the making of a new will and intending that the revoked will be replaced by a new will, where the new will is thereafter found to be invalid, the prior will may be re-established on the ground that the revocation was dependent on the validity of the later will, and that the testator would have preferred the earlier will to intestacy.”).

This doctrine creates a “rebuttable presumption that the testator would have preferred to revive his earlier . . . bequests rather than let the property go by intestacy.”  Stewart v. Johnson, 194 So. 869 (Fla. 1940); Wehrheim v. Golden Pond, 905 So.2d 1002 (Fla. 5th DCA 2005); In re Estate of Pratt, 88 So.2d 499 (Fla. 1956).  This presumption is premised on the general notion that testacy is preferred by the Courts over intestacy.  Wehrheim v. Golden Pond, 905 So.2d 1002 (Fla. 5th DCA 2005);  Stewart v. Johnson, 194 So. 869 (Fla. 1940); see also Elmore v. Elmore, 99 So.2d 265 (Fla. 1957); In re Gregory’s Estate, 70 So.2d 903 (Fla. 1954); In re Smith, 49 So.2d 337 (Fla. 1950), In re Estate of Barker, 448 So.2d 28 (Fla. 1st DCA 1984); In re Estate of McGahee, 550 So.2d 83 (Fla. 1st DCA 1989), reviewed denied, 550 So.2d 232 (Fla. 1990); In re Estate of Baer, 446 So.2d 1128 (Fla. 5th DCA 1984), reviewed denied, 456 So.2d 1181 (Fla. 1984); Dutcher v. Estate of Dutcher, 437 So.2d 88 (Fla. 2nd DCA 1983); and In re Estate of Gold, 189 So.2d 905 (Fla. 3rd DCA 1966).

There are two confluent presumptions that form the basis of this doctrine, as follows: 1) the testator did not intend to die intestate, and 2) the testator intended that the revocation of the prior will is conditionally qualified on the validity of the subsequent will.  Wehrheim v. Golden Pond, 905 So.2d 1002 (Fla. 5th DCA 2005);  Stewart v. Johnson, 194 So. 869 (Fla. 1940); In re Estate of Jones, 352 So.2d 1182 (Fla. 2nd DCA 1977).  In order to determine the testator’s presumed intent, the Florida Courts consider whether the provisions of the present invalid will are sufficiently similar to the former will, so the similarities between the two documents are adequate to establish the relation of one to the other and they both incorporated a general scheme or plan of the testator to dispose of his estate.  Wehrheim v. Golden Pond, 905 So.2d 1002 (Fla. 5th DCA 2005);  Stewart v. Johnson, 194 So. 869 (Fla. 1940).  If the later revoked will is sufficiently similar to the prior will, then Florida Courts could more easily accept the presumption that the testator intended the revocation of the former will to be conditional on the validity of the later will and that the testator prefers the provisions of the former will over intestacy, which is a prevailing view in many jurisdictions in Florida.  Wehrheim v. Golden Pond, 905 So.2d 1002 (Fla. 5th DCA 2005);  Stewart v. Johnson, 194 So. 869 (Fla. 1940).

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