dependent relative revocation and hypothetical and will contest

"The doctrine of DRR has lost its way. After examining many cases, there does not appear to be any consistency in applying the doctrine. It has been expanded by the courts to situations far beyond its initial application" (p. 1).

He proposes a scheme that would dramatically cut back its application but would use it in circumstances where the two wills were similar enough to each other that a "bond" or "connection" could easily be established.

The Continuing Doctrinal Difficulty

But the difficulty with the doctrine can be seen by the following hypothetical. Let us say that A draws up in 1985 a will bequeathing to his brother stocks, bonds and real estate totalling $1,000,000. Later, however, he becomes disgusted with his brother and decides to write a new will. In this 1987 will he leaves the same securities and land to his sister alone. He tears up the old will or, alternatively, he writes "VOID" in large letters on every page of it. However, he has forgotten to get the new will properly signed. Perhaps, we could add, his mental capacity in making a new will could easily be questioned. Let us say, also that A has three children with whom he has had a falling out and so doesn't want to leave them anything. He dies in 1989. Who takes? Is there any way that doctrine will help us?

Let's take the various parties one at a time. A apparently wanted to have the second will be effective. He expressed his clear "animus revocandi" with respect to the first will. Yet, the second will is invalid because it violated the state statute regarding will formalities. What is a court to do? On the one hand, if it truly wanted to honor the "intention" of the testator, it would award the securities to the sister, but it cannot do this because the will was improperly drafted. Can a court "reform" a will or "improve" it in order to make it conform to testamentary requirements in order to fulfill the intention of the testator?

The opinion seems to be growing that courts have some latitude to do this, but most courts would be reluctant to imply the legality of a will when formalities were ignored. Yet, some courts seem increasingly open to receiving testimony about intention of the testator, especially if there is some ambiguity that can be squeezed out of the situation. At this point, however, we would have to conclude that the sister cannot take.

Now Where do We Go?

Then, the doctrine of DRR might be used by courts to reverse the invalidation of the 1985 will. That is, if a court concludes that the two wills are "bound" to each other, it can revive the first will. But this doesn't seem like it will work in our day for two reasons. First, it smacks of judicial activism, and judicial activism is sort of a curse word in American jurisprudence today. It suggests that judges know best what the "intention" of a testator is, and that they would assume that the testator would rather bequeathe his property to his brother than to his children. But, this obviously cannot be so easily determined. Indeed, the reason he changed beneficiaries in the 1987 will is because he didn't like his brother. How would it be honoring the intention of the testator in the least to apply a doctrine that would award the securities and property to the person to whom he specifically was trying to avoid giving it? Second, many states at present do not recognize the common law doctrine of DRR. Few in our present judicial climate would want to be added to the small list of the states that do.

Well, that leaves us with intestacy, doesn't it? After all, A had given an unmistakable sign that the first will was cancelled. Since the second will has no effect, we fall back on the intestate succession statutes of the state. That means that the property would go to the children, divided in thirds. Well, this would be a pleasant windfall for the children, but they would be in the ironic position of receiving from their father when they knew they were not any longer the objects of his bounty.

What Is a Court to Do?

So, quite frankly, the court is in a bind. It cannot honor the intention of the testator because to do so would violate state law. DRR should not be easily invoked because it would award the property to someone specifically eliminated from the will. The best solution would be to divide the property among the children, which is maybe where it should have gone all along.

This problem illustrates a stark weakness in the doctrine of DRR. It can be useful indeed if, as Professor Schiavo argues, the terms of the bequest are not significantly different between the two wills. But, the closer the terms are between wills the less you really need DRR. The court might simply through its equitable powers decide to honor one will over the other. But the more you have a real legal problem, that is, the more you have a situation where the contents of the two wills are different, the less capable DRR is of helping. The only thing it can do is to revive a bequest to a party that the testator wanted to cut out of a subsequent will.

Conclusion

Thankfully, however, the need for DRR might be almost at an end. State statutes, such as in NY and other states, require that in order to give effect to a revoked will, it has to be republished with all the statutory formalities for making a will. This would mean that the more awards would go the way of intestate succession if a subsequent will was found invalid. Or, in many cases, the first will can be upheld by the realization that most new wills invalidate their predecessors but if they themselves are declared invalid, the validity of the first will is not affected. I suppose it still has a usage where successive wills are similar in character but this gives the doctrine a whisper, rather than a shout. Maybe this betokens that the doctrine actually will fade in most instances, leaving it a very narrow scope for operation. But few will lament the interment of a doctrine of which they have never really heard.

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