Wills, Trusts, and Estates

Dependent Relative Revocation

If a testator revokes his will based upon a faulty assumption, the revocation is presumed to be ineffective. R3P § 4.3.

E.g, if one revokes his old will and tries to make a new will because he believed something to have changed about the beneficiaries or if he believes the new will to be legally valid or if he believes the new will to distribute the property differently than it does, then the new will will not be followed and the old will will be.

This is to follow the testator's intent and to avoid intestacy.

The DRR presumption arises when there is a:

  1. Valid prior disposition,
  2. Purported revocation, and
  3. Either
    1. The revocation was accompanied by an alternate disposition stated in the revocation, which is invalid, or
    2. The revocation recites a mistake of fact (or law) (that we are assuming has a causal relationship to the revocation), and
  4. We believe that the testator would not desire the revocation if he knew that the alternative disposition fails or about the mistake of fact.

Just revoking a will with an intention to make a new will and failing to do so does not make the revocation ineffective unless the decedent took actual steps to complete the plan to make a new will. R3P § 4.3, Comment c.

If a later will intended to replace an earlier will contains provisions from the first will that are now ineffective because of state law, the revocation of those provisions from the first will is ineffective. They will apply. R3P § 4.3, Comment e.