dependent relative revocation and intestate succession

As mentioned in the previous essay, the purpose of DRR is to save or revive an earlier version of a will that has been revoked by a later will in order to "save" a testator from intestacy. Most modern scholars point to the 1716 case of Onions v. Tyrer* as inaugurating the doctrine. I draw the summary from a 1999 law

[*The proper citation for this case is 2 Vern. 741. The word "Vernon" is he so-called "nominate reporter" for early common law cases. Almost all these cases are now collected in the 175-volume reprint of English cases. This series has a two volume case index which directs you to the specific volume where the case can be found. Onioins is reprinted at 23 Eng. Rep. 1085).

review article. "Tyrer made a properly executed will detailing the testamentary disposition of his realty. He later made a second will that revoked the first and effected minor changes as to the disposition of his real estate. However, as Tyrer was bedridden when he drafted his second will and there was no place in his room for the three witnesses to sign, they signed out of sight of the testator. The failure to sign in the testator's presence invalidated the will. Tyrer then had his wife destroy the first will. The court held that since Tyrer's second will was invalid, the revocation clause therein was also invalid. The court also held that owing to the similarity between Tyrer's two wills, Tyrer most likely would have preferred his first will to intestacy. In reaching this conclusion, the Tyrer court found it clear that Tyrer revoked his first will 'only upon a supposition that he had made a latter will at the same time, and both wills, as to the main, were much to the same effect.' As such, the court set aside Tyrer's revocation of the first will and allowed it to stand."

DRR is the doctrine described in the second of the court's holdings just given. Thus, the Onions case had to do with the continued applicability of an invalidated will once a subsequent will was itself declared invalid. If you are a clever and careful reader, however, you might just ask why the first holding the court suggests won't handle nearly all the subsequent cases (i.e., since the revocation clause itself is invalid, why not just resuscitate the first will?)? In this case, however, the first holding really won't help much because the cancellation of the first will was done by act rather than by a subsequent will. All will statutes provide that if you tear it up with a so-called animus revocandi (mind to revoke), it is revoked. Since the combination of intent and act was here, the first will was (seemingly) revoked. But because the court posited that the testator would have preferred the first will to intestacy, it revived the first will.

A Court Finds Intestacy

Even though the basic principle of Onions is clear--that the intention of the testator was not to become intestate but only minimally to change the will-- the result might be different if a more dramatic change occurs between the first and second wills. The 1855 case of Tupper v. Tupper illustrates the problem (69 Eng. Rep. 627). In this case a testator, a priest, made out an 1851 will leaving bequests to various charities. In 1853 he executed a codicil changing the beneficiaries. What is interesting however, is that the gifts described in the codicil, though valid, could not be delivered to the charity because the priest died before the gift could take effect.* The court was faced with the problem of whether to use

[*Mortmain statutes required effective gifts to occur more than three months before the testator's death. In this case, he died within that three-month window. That these statutes still could invalidate a later bequest is seen in the 1973 case Crosby v. Alton Ochsner Medical Center, 276 So2d 661 (MS 1973)]

the doctrine of DRR and award under the 1851 will, which seemingly was revoked according to the valid 1853 codicil, or to declare that no will was valid, which seemed to run against the testator's intention and would lead to the undesirable situation of intestacy (the common law wanted to avoid intestate gifts if it was possible to do so). The court invalidated the 1851 will as well as the 1853 codicil.

DRR with a Twist

While DRR was growing in the 19th and 20th century primarily with respect to reviving wills that were destroyed or cancelled when their replacement wills were found invalid, it also branched out in two other areas. It became applied to certain cases where the testator revoked a valid second will intending to revive the first will. For example, in Estate of Alburn the defendant had executed a 1955 will in Milwaukee and a 1959 will in Kankakee. The wills had dramatically different provisions. In 1960 the testator tore up the Kankakee will and stated that she "got rid of it" and that she wanted the 1955 Milwaukee will "to stand." But this isn't the way you revive an old will, because once the 1959 will was validly executed it invalidated the older one. Nevertheless, the court applied DRR to revive the Milwaukee will so the testator wouldn't die intestate (118 NW2d 919 (WI 1963)). Once the principle of DRR seemed to be established, of a "connection" or "bond" between two wills, it seemed like courts could revive either of the two wills as it desired.

Finally, there was expansion in the doctrine through a few cases that held that even if there was no second document, DRR could apply. For example, in one 1905 case an attorney began adding additional notes to his will which would, apparently, form the basis of a new will. Yet, he died before a new will was drafted. Nevertheless, the court didn't interpret these inconsistent notes as a sign of intention to revoke. The court brought in the bogey-man of intestacy again:

"It is clear that the [testator] did not intend to die intestate...we can see in the mind of the testator an intention to hold to the old will until the new one was an accomplished fact...The circumstances would seem to justify the application of the rule of dependent relative revocation," In the Matter of Raisbeck's Will (102 NYS 2d 967, 969-970 (1906)).

Conclusion

Thus, by the mid-20th century we have a doctrine of fairly broad scope that can seemingly be invoked by a court in a variety of circumstances but perhaps not with the doctrinal consistency that law professors and judges would like to see.

The final essay asks if we can do anything about this.

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