Dependent Relative Revocation

As people progress through different stages of their lives, their beliefs and objectives sometimes fluctuate and change. One situation in which an individual may change his or her mind is when writing a will. People often change their minds about whom to devise or bequest their property. But, what causes people to change their minds? What if someone revokes their will based on a mistaken assumption of law or fact? Is the new will effective? Does the old will get revived if the new will is ineffective?

Over the years, courts have wrestled with such questions and, resultantly, have come up with the doctrine of dependent relative revocation (“DRR”). Essentially, the courts have decided that if a testator claims to revoke his will, and he or she does so based on a mistaken assumption of law or fact, the revocation is invalid if the testator would not have revoked the initial will had he known the truth. Once it is clear to the court that the revocation of the prior will was based upon the validity of the new will, the court will apply DRR. The doctrine creates a “rebuttable presumption that the testator would have preferred to revive his earlier . . . bequests rather than let the property go by intestacy.” In re Estate of Pratt, 88 So. 2d 499, 501 (Fla. 1956).

Courts instituted this doctrine to avoid having the decedent’s property pass through intestacy by default. In other words, courts assume that the decedent would prefer to have his or her prior will probated if the new will fails. The doctrine of dependent relative revocation is at its basically a “second-best approach” to distributing the property of the decedent. The policy behind this doctrine is that the testator did not have the requisite intent to revoke his will because the revocation was based on a false belief that the new will was valid. In situations where DRR applies, the court will not probate the new (or later) will but, instead, will probate the will that was effective prior to the later will that is based on the falsehood.

The doctrine, however, is one of presumptive intent of the testator, and not one of actual intent. Thus, to determine the testator’s presumptive intent, Florida courts look to whether the provisions of the new invalid will are sufficiently similar to the former will. Wehrheim v. Golden Pond Assisted Living Facility, 905 So. 2d 1002, 1008 (Fla. 5th DCA 2005). If the new will is sufficiently similar to the prior will, the Courts are less reluctant to infer the presumptive intent of the testator and, therefore, more likely to decide that the revocation of the old will was conditioned on the later will being valid. In that instance, the court will likely assume that the decedent would prefer his property be distributed in accordance with the prior will rather than the Florida intestacy statute.

If you or someone you know has an issue with the validity of a new will or you would like to take appropriate action to prevent issues with your testamentary instrument, please do not hesitate to contact the law offices of Chepenik Trushin LLP. The experienced attorneys at Chepenik Trushin are ready, willing, and able to assist with these estate planning needs. Please feel free to contact us for an initial consultation.

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