DOCTRINE OF THE DAY – Dependent Relative Revocation

The WIll

If a person ( referred to in legal terminology as a testator, if a male, and testatrix, if a female but hereinafter referred to as T for the sake of brevity)  makes a will and then revokes it but makes a mistake as to the facts surrounding the reason he or she is revoking it the doctrine of dependent relative revocation  may allow the effective cancellation of the revocation.  Dependent relative revocation considers the presumed effect of T’s mistake on the revoked will. In performing a dependent relative revocation analysis a court engages in a bit of “what if”.  The judge asks what if T, who is now dead had been informed of the mistake? Would T have cancelled the revocation and left the will in place? In effect the Court (that is the judge and or jury performing their respective roles) guesses as to what T would have done given the facts.

The application of the doctrine is a two step process:  (1) the court determines if T revoked the will by mistake, and (2) then the court determines what T would want to do about the revocation had he or she known about the mistake.  Would T want to revoke the revocation or let it stand? If the court determines that T would have preferred to cancel the revocation then the revoked will is treated as valid.

Cases involving this doctrine fall basically into two categories: (1) those where a will is revoked in anticipation of the signing of a second will which T does not sign because he or she dies before signing the new will, and (2) cases where a will is revoked then a second will is signed and it is then revoked and T dies without having a chance to sign a third will.

In the first set of cases the court might decide the will was revoked by mistake as T believed that he or she would execute their new will later that day after the old one had been revoked. The court would then consider whether T would prefer to cancel the revocation or whether the T, would have preferred to have died intestate. (This means without a will and the passage of the property would be done according the Code of Laws of the State in which the T lived. This also means the State would be, in effect, making T’s will for T.)

The second set of cases presents what we lawyers like to call a “harder” case.  If the second will is revoked it is presumed under the provisions of the probate code in South Carolina that T did not intend to revive the first will upon the revocation of the second. The law requires that the intent to revive the first will be proven by clear, cogent, and convincing evidence.  I such evidence is not adduced by the party advocating the validity of the will then the property of T passes by intestacy and according to the provisions of the probate code.

There is a rare but third category called “tentative markings” cases.  In those cases T marks on the original signed will and it raises a question as to whether there was an intent to revoke.

In summary the common law developed an imperative that the “intent” of T was always to be found and fulfilled. Therefore, the doctrine of dependent relative revocation represents another method by which the intent of T may be discerned and put into effect.

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