DEPENDENT RELATIVE REVOCATION: THE DOCTRINE OF REVIVING REVOKED WILLS

What happens when a person writes a new will, revokes his or her previous valid will, and the probate court later determines that the new will is invalid? Usually, the person will be considered to have died intestate, i.e., without a will, and his or her property will be distributed according to the Florida intestate succession statutes. However, there is a way to “revive” the revoked valid will. The doctrine of dependent relative revocation (“DRR”) allows a revoked will to be revived when revocation of that will was conditioned upon the validity of the new will.

The DRR doctrine creates a presumption that the decedent would have preferred to revive his earlier will rather than die without a will and let his or her property pass through Florida’s intestate succession statutes. Essentially, the DRR doctrine is based on two presumptions: (1) the decedent did not intend to die without a will, and (2) the decedent revoked his or her previous will on the condition that the new will is valid. Courts are more likely to apply these presumptions when the provisions of the revoked valid will and the new invalid will are similar.

In Stewart v. Johnson, 142 Fla. 425, 428 (Fla. 1940), the Florida Supreme Court applied DRR to revive a revoked will. Lott Johnson had his attorney draft a will in 1937. One year later, Mr. Johnson revoked his will and made a new one, but he did not have his attorney draft it. Instead, Mr. Johnson dictated the provisions of his new will to his secretary who then signed the new will as the sole witness. Both wills made substantial bequests to a woman who lived with Mr. Johnson. Because Florida law requires that two witnesses sign a will, Mr. Johnsons’ new will was invalid. The Court found that Mr. Johnson’s revocation of his previous will was conditioned on the validity of the new will. Applying the DRR doctrine, the Court revived the revoked will.

Wehrheim v. Golden Pond Assisted Living Facility, 905 So. 2d 1002 (Fla. 5th DCA 2005) presents another example of a Florida court applying the DRR doctrine. Dorothy Wehrheim executed a total of four wills during her lifetime. None of those wills named her children as beneficiaries. In 2002, Ms. Wehrheim executed her last will, which again left nothing to her children and expressly revoked all her previous wills. After she died, Ms. Wehrheim’s children challenged the validity of the 2002 will arguing that it was the product of undue influence. Ms. Wehrheim’s children, however, faced a problem with their challenge: if the 2002 will was invalid, then the DRR doctrine would revive Ms. Wehrheim’s previous revoked will, which left nothing to her children. Thus, whether the 2002 will was valid or invalid, Ms. Wehrheim’s children got nothing. However, Ms. Wehrheim’s children argued that, while most of the 2002 will was invalid, the revocation provision of the 2002 will was not the result of undue influence and was therefore valid. Consequently, Ms. Wehrheim validly revoked all her previous wills. Furthermore, because the provisions of the 2002 will and the previous wills were not sufficiently similar, Ms. Wehrheim intended to revoke her previous wills but did not intend that her revocation be conditioned on the validity of the 2002 will. Ms. Wehrheim’s property must therefore be distributed according to Florida’s intestate succession statutes making her children the sole beneficiaries of her estate. The district court found that it would be difficult to prove such an argument. However, the court held that Ms. Wehrheim’s children were nonetheless entitled to try to prove their case.

The DRR doctrine endeavors to preserve the intent of the person who made the will. Generally, a court will apply the DRR doctrine when (1) the decedent would have preferred to revive a past will rather than have his property pass through Florida’s intestate succession statutes, and (2) the valid will was revoked on the condition that a new invalid will take its place. It is important to keep in mind, however, that DRR will not make an invalid will valid. As the above cases illustrate, revoking a will is not something that should be done without consulting an attorney. To ensure that your intent is preserved, you should contact an attorney before creating or revoking a will.

Florida Probate Attorney Peter T. Mavrick represents clients in probate, trust, and guardianship litigation. This article is not a substitute for legal advice tailored to a particular situation. Peter T. Mavrick can be reached at: Website: www.mavricklaw.com; Telephone: 954-564-2246; Address: 1620 West Oakland Park Boulevard, Suite 300, Fort Lauderdale, Florida 33311; Email: peter@mavricklaw.com.