dependent relative revocation and joseph warren and harvard law review and mistake and frank schiavo

I need to begin by explaining how I got tangled in trying to understand this arcane doctrine in trusts & estates law. I was studying the equally obscure doctrine of the assignability of choses in action at common law, and I discovered a kind of "debate" on the subject of choses in action in the pages of the Harvard Law Review in the 1910-20s between Walter Wheeler Cook and Samuel Williston. When leafing through vol. 33 of the HLR, my eyes fell upon Professor Joseph Warren't article on "dependent relative revocation" ("DRR"). I vaguely remembered it as a doctrine I whizzed over in my trusts & estates class in law school, and I decided that I needed to understand its history and formulation (at least in the 1920s) and then try to see if it still had utility today.

As with most things, the history is fascinating and not a bit inconclusive. Yet, it opens up worlds of understanding and the struggles of courts in dealing with a very simple problem. The purpose of this and the next two essays is to describe the problem, the original definition of the doctrine, the expansion of it, the difficulties that courts found in applying it and, finally, some words about it today. I found Professor Frank Schiavo's 2005 online article on DRR helpful in conceptualizing the problem and describing a solution.

What is DRR and How Did it Get Its Name?

Let us take a simple problem in the law of wills. A is a testator and decides to draw up a will. Later, A decides to revise the will, either in small or large ways. Normally, A will then do two things with respect to the first will. S/he will have a clause in the second will revoking the first, and s/he will usually destroy the first will. This will leave no doubt as to which will is effective in a probate proceeding.

If life was simple there would be no reason for law or, at least, for legal controversies. But life being what is, complications enter. In this case, the complication is that the second will, for whatever reason, is found to be invalid. It can be that the testator lacked testamentary capacity (perhaps being of failing mind); that s/he didn't follow formalities (e.g., proper number of signing witnesses); that the gifts in the second will failed somehow (old statutes precluded gifts to certain charities within a month or three months of a testator's death; if s/he died within that time, the bequests were void). The problem then arises. If the second will is found to be void, what is the legal position of the first will?

On the one hand, one might argue that the "voidness" of the second will means that the first will automatically is in force because one might assume that voidness of the second means also that the revocation clause in the second is ineffective against the first will. But, what if the invalidity of the second will only reaches the substantive provisions and the revocation paragraph is considered legitimate? Then, should one disregard the substantive provisions (who receives under the will) of both wills and consider the person intestate? Or, should one try to honor the "intention" of the drafter of the will, even if this intention is rather inexpertly expressed? Isn't that, after all, one of the purposes of trusts & estates law, to implement the intention of the testator? But, on the other hand, courts usually hold that strict compliance with wills' statutes is de rigueur, which would lead them either to invalidate the first will (if they held that the revocation clause in the second will was valid) or embrace it (if the entire second will is invalid). Well, let's try to sort through this thicket with a definition and an exposition of the original case that got it all started.

The Definition of DRR

Let's begin with two definitions. In his 1920 article on DRR, Professor Joseph Warren sites the 1787 treatise Powell on Devises as originating the term:

"This principle, that the effect of the obliteration, cancelling, etc., depends upon the mind with which it is done, having been pursued in all its consequencs, has introduced another distinction not yet taken notice of; namely, that of dependent relative revocations, in which the act of cancelling, etc., being done with reference to another act meant to be an effectual dispostion, will be a revocation or not, according as the relative act is efficacious or not" (33 HLR at 337).

Then, not so ponderously, from a recent edition of a standard modern work on trusts and estates: DRR 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" (quoted in Schiavo, n. 2).

Thus, DRR is "dependent" because it inquires whether the older will was directly connected or bound to the new one; it is "relative" because the act in drafting a new will relates to the old one and it is a "revocation" because the later will attempts to revoke the earlier one.

Conclusion

In a nutshell, then, DRR is a doctrine courts can use to revive an apparently revoked first (or earlier) will upon the declaration that the newer (or latest) will is invalid. The fear or bogey-man that DRR is trying to address is that of intestacy. If no doctrine such as DRR is available, it just might happen that improperly drafted later wills would bring down every previous will drafted and drop the unfortunate testator into intestacy, which appears to be quite contrary to what s/he originally intended.

Let's now turn to ways in which the doctrine has been used.

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