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Wills • Revocation
WILLS#027
Legal Definition
Dependent Relative Revocation ("DRR") is not a revival, but rather cancels a revocation that was based on a mistaken assumption of law or fact. It is only available where (1) the testator revokes Will #1 based on a mistake and (2) simultaneously makes Will #2 based on the same mistake. The court will cancel the revocation of Will #1 if it is consistent with the testator's intent. Extrinsic evidence is only okay where the testator revoked Will #1 by physical act.
Plain English Explanation
As you've learned in other cards, estate law puts a big emphasis on trying to carry out a dead person's wishes as best—and as reliably—as possible. Here, the issue is that the testator has done something that accidentally or mistakenly revokes—in whole or in part—their will and attempts (but fails) to create a new one. For example, imagine if Bob had a valid will that left $1000 to Sam. Later, after the will has been witnessed and fully attested, Bob thinks, "Dang, you know what? $1000 isn't enough for Sam." So Bob uses a pen and crosses out the "$1000" and writes "$2000" next to it.
What just happened here? Sam has attempted to increase his gift to Sam from $1000 to $2000. However, legally, the moment that Sam crossed out the "$1000," it acted as a cancellation and revocation of that gift. Moreover, legally, Sam's attempt to write "$2000" next to it is meaningless because that writing would be unattested and, thus, unenforceable.
In other words, without the DRR rule, a court should deny giving Sam anything, since his gift was cancelled out from the will and they are unable to recognize the attempt to increase it to $2000. However, with DRR, the courts are allowed to use a bit of common sense and recognize what Bob was trying to do. Though they can't give Sam $2000, they can cancel the revocation of his $1000 gift to better represent Bob's wishes.
What just happened here? Sam has attempted to increase his gift to Sam from $1000 to $2000. However, legally, the moment that Sam crossed out the "$1000," it acted as a cancellation and revocation of that gift. Moreover, legally, Sam's attempt to write "$2000" next to it is meaningless because that writing would be unattested and, thus, unenforceable.
In other words, without the DRR rule, a court should deny giving Sam anything, since his gift was cancelled out from the will and they are unable to recognize the attempt to increase it to $2000. However, with DRR, the courts are allowed to use a bit of common sense and recognize what Bob was trying to do. Though they can't give Sam $2000, they can cancel the revocation of his $1000 gift to better represent Bob's wishes.
Hypothetical
Hypo 1: Bob creates a will leaving his estate to Sam. He then hears a false rumor that Sam has passed away. Believing this, he destroys his will and writes a new one leaving everything to charity. Later, he discovers Sam is alive. Result: Here, the court would likely apply Dependent Relative Revocation to revive Bob's original will, as it was cancelled due to a mistaken belief about Sam's death.
Hypo 2: Bob writes a will favoring Sam, but later, based on incorrect legal advice, believes the will is invalid. He cancels it and writes a new one leaving everything to his neighbor. He soon realizes his first will was fine. Result: In this case, the court would likely bring back Bob's original will through Dependent Relative Revocation, as the cancellation was based on a mistaken understanding of the law.
Hypo 2: Bob writes a will favoring Sam, but later, based on incorrect legal advice, believes the will is invalid. He cancels it and writes a new one leaving everything to his neighbor. He soon realizes his first will was fine. Result: In this case, the court would likely bring back Bob's original will through Dependent Relative Revocation, as the cancellation was based on a mistaken understanding of the law.
