What is Dependent Relative Revocation?

California Probate Code (CPC) § 6120 defines the following acts as constituting revocation of a will or any part thereof: 1) a subsequent will which revokes the prior will (or part) expressly or by inconsistency, or 2) the will being burned, torn, cancelled, obliterated, or destroyed with the intent and for the purposes of revoking it by either the testator or another person in the testator’s presence and by the testator’s direction.

Sometimes a testator will destroy a prior will after making a new will. This could become a problem for the testator if the new, subsequent will is invalid or unenforceable. This is because even though the prior will was valid, it is now destroyed and revoked under CPC § 6120. Rather than having no will in effect at the time of the testator’s death, the courts have created a doctrine called dependent relative revocation (DRR) to alleviate the harshness of the consequences of a testator’s mistake.

In other words, if a testator revokes his or her will, or a portion thereof, in the mistaken belief that a substantially identical will or codicil effectuates her intent, then by operation of law the revocation of the first will be deemed conditional, dependent, and relative to the second effectuating the testator's intent. If the second does not effectuate the testator's intent, the first (by pure legal fiction) was never revoked.

The law creates a rebuttable presumption that the testator would have preferred the former will to no will at all, and so the courts will allow probate of the destroyed will. The language of the actual statute is somewhat more difficult to understand. CPC § 6123(a) reads:

If a second will which, had it remained effective at death, would have revoked the first will in whole or in part, is thereafter revoked by acts under Section 6120 or 6121, the first will is revoked in whole or in part unless it is evident from the circumstances of the revocation of the second will or from the testator's contemporary or subsequent declarations that the testator intended the first will to take effect as executed.

In other words, under DRR, the testator is presumed to have intended to revoke an earlier will on the condition that a later will was valid if the testator's revocation of the earlier will was based on the mistaken belief that the later will was valid.

The 1716 case of Onions v. Tyrer is an example of DRR. In that case, Tyrer made a properly executed will detailing the testamentary disposition of his realty. He later made a second will that revoked the first and effected minor changes as to the disposition of his real estate. However, as Tyrer was bedridden when he drafted his second will and there was no place in his room for the three witnesses to sign, they signed out of sight of the testator. The failure to sign in the testator's presence invalidated the will. Tyrer then had his wife destroy the first will.

The court held that since Tyrer's second will was invalid, the revocation clause therein was also invalid. The court also held that owing to the similarity between Tyrer's two wills, Tyrer most likely would have preferred his first will to intestacy. In reaching this conclusion, the Tyrer court found it clear that Tyrer revoked his first will 'only upon a supposition that he had made a latter will at the same time, and both wills, as to the main, were much to the same effect.' As such, the court set aside Tyrer's revocation of the first will and allowed it to stand.” 23 Eng. Rep. 1085.

Another case that wrestled with this issue was Estate of Alburn. In that case, the testator destroyed her second will believing that this would reinstate her first will, which was explicitly revoked by the second will.

The issue was whether the revocation of the second will was effective. The court held that no, the doctrine of dependant relative revocation applied to the case. DRR was based upon the testator’s inferred intention. The court held that as a matter of law the destruction of the later document was intended to be conditional where it was accompanied by the expressed intent of reinstating a former will and where there was no other explanatory evidence.

The court noted, however, that evidence that the testator intended the destruction to be absolute takes the case out of the doctrine, and DRR will not apply.

The court reasoned that it could do one of two things, and its goal was to find which option most nearly approximates the testator’s intention:

1) It could decide whether she would have liked to die intestate or
2) She would have preferred the first will to be effective rather than to die intestate.

The court justified the result of holding a later destroyed will valid because there are two elements necessary for physical revocation:

1) a physical act and
2) intent to revoke.

The court held that the element of intent was conditional in this case. Intent to revoke was conditional on the prior will being reinstated.

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