May 6, 2015
Authored by: Luke Lantta
The name of the doctrine itself is something that could only be loved by trusts and estates lawyers: dependent relative revocation. The idea that it captures, however, is more intuitive. If cancellation of an old will and making of a new will are parts of the same scheme, and the cancellation of the old will is so tied to the making of the new will that its revocation is entirely dependent on a new will being made, then, if the new will is not made or is otherwise found to be invalid, the old will (though cancelled or revoked) is given its effect. In other words, if you revoke a will only as part of making a new will but the new will either doesn’t get made or is invalid, then the old will springs back into effect.
In Mosley v. Lancaster, the Georgia Supreme Court showed us how closely intertwined the revocation of an old will must be to creation of a new will in order to have the doctrine of dependent relative revocation apply. Indeed, it may need to be nearly contemporaneous.
In this case, the decedent arrived at a meeting with a lawyer carrying a copy of her old will, which had X’s marking out some provisions and comments written in the margins and between lines in ink, and told the lawyer she wanted to change her will. The lawyer went over the will with the decedent, but could not determine from the document and markings alone what the decedent wanted, so he asked the decedent how she wished her estate to be distributed. The lawyer then prepared a new will based on the marked-up original will, his conversation with the decedent, and his meeting notes. When the decedent executed the new will, she directed the lawyer to tear up the old will, which he did and threw it in the trash. That new will was later invalidated on the grounds of undue influence. Those who benefited more under the earlier will than under the laws of intestacy sought to invoke the doctrine of dependent relative revocation to revive that earlier will. It didn’t work.
The Georgia Supreme Court affirmed the trial court’s determination that the decedent’s obliteration or cancellation of a material portion of the old will through the X’s and comments – rather than the lawyer later tearing up the will – raised a presumption that the decedent intended to revoke that will. Thus, the decedent had revoked the old will before meeting with the attorney. Because the decedent revoked the old will before even meeting with the attorney to create a new will, the doctrine of dependent relative revocation did not apply.