Revoking a Will and Dependent Relative Revocation (DRR)

Any testator with capacity can revoke all of part of his will at anytime. A valid will, once executed, can be revoked by (i) a written instrument, (ii) a physical act, or (iii) operation of law (i.e. divorce). Dependent relative revocation (DRR) is a doctrine that can "undo" a revocation.

(i) Revocation by subsequent written instrument
Executing a valid subsequent will that 1) expressly revokes previous will or 2) is inconsistent with the previous will.

Express revocation
A will that expressly revokes a previous will will say something like “I revoke the will made on January 1, 2000” or “I revoke any will previously made.” A formally attested wills can be revoked by a holographic wills (and vice versa). An oral revocation is completely invalid

Revocation through inconsistency
Making an inconsistent disposition in a subsequent will may revoke the previous will. For example, Sam has a will giving his car to Alice, and the rest of his estate to Mel. He then makes another will giving his car to Bob. The second will partially revoked the first will and is therefore considered a codicil to the first will. The gift to Alice is revoked and Bob gets the car. Mel continues to get the rest of the estate. You must read the 2 documents together.

In another example, assume Debbie has a will giving all of her estate to Ann. She then makes another will giving all of her estate to Becky. The second will revokes the first one because it is completely inconsistent.

(ii) Revocation by physical act
There are 3 requirements that must be satisfied for a will to be revoked by physical act. First, the will must be “burned, canceled, destroyed, torn or obliterated.” It's not enough to write “void” or “cancel” in the margin. You have to mutilate it. You can write something that effects the face of the will like an X through the whole will.

Second, the act must be accompanied simultaneously by a present intent to revoke the instrument. Therefore, accidental burning will not revoke the will. Where the act of revocation is performed by a person other than the testator, the other person must act in the presence of the testator and at the testator’s direction.

Third, the act must be done by the testator or by someone in the testator's presence and at his direction.

Partial revocation
You can always revoke partially by express subsequent will, however because of fraud concerns, most states do not allow partial revocation by physical act. California is one state that allows for partial revocation by physical act.

Sometimes hard to see whether the testator intended to revoke some or all. If the testator clearly strikes out one sentence, that’s a partial revocation. If the testator puts X through paragraph that’s partial as well and the rest of the will is effective. But sometimes you can’t tell if they are trying to revoke whole thing. In that case, the judge interprets the will.

Cancellation and interlineation: you cannot informally add to a formal will
While you can informally revoke a formal will, you can’t informally add to a formal will. Assume someone crossed out Jim’s name in a will and writes in Jane instead of Jim. The crossing out is allowed as as revocation, the addition of Jane is not valid. You can’t add to a formal will by crossing out a name and adding someone else’s name, BUT you can do this with holographic wills! If you had a holographic will it can be changed informally by crossing out and adding a new name. If it’s a holographic will, crossing out a provision and adding a new one in his handwriting is both a revocation and a valid new disposition. Testator's prior signature is deemed adopted at the time of interlineation and all material terms are in the testator's handwriting.

If, in between the lines, you write “I give my entire estate to Jane” and the testator signs it, NOW there is a holographic will. There is a material provision and it was signed, so this will be an effective holographic codicil, and the gift to Jane will be carried out.

Assume the testator executes a typed formally attested will that states "I leave $10,000 to Monica." Then, the testator takes a pen and crosses out the the $10,000 and writes $15,000 above the $10,000. Testator signs his name. Do we have a valid holographic codicil on top of a formal will? No. The $15,000 gift is invalid as a holographic will because material provisions (gifts and names of the beneficiaries) are not in the testator's own handwriting. Because the $10,000 gift to Monica has been revoked by physical act (cancellation + intent), Monica takes nothing.

But dependent relative revocation (discussed below) can save this gift. Basically, we can save Monica's gift so she takes the original $10,000. The revocation is said to have been conditional on the $15,000 being effective. Since the $15,000 wasn't effective, by operation of law, the $10,000 revocation was never effective. Clearly, the testator would rather Monica take $10,000 over nothing because the testator indicated that he wanted to increase his gift to Monica. If Monica can't take $15,000, let her at least take $10,000.

However, if testator's interlineation was $5,000 rather than $15,000, dependent relative revocation may not save Monica's gift. Perhaps the testator wanted Monica to take nothing than $10,000.

Note that a cancellation will not increase a gift. If testator write "I leave my farm to X and Y" and then he crosses out Y, then X gets 1/2 of the farm and Y's 1/2 will go to the residuary.

Duplicate copy vs. duplicate original
Destruction of a duplicate copy will not revoke, but destruction of a "duplicate original" will revoke the will. Assume a lawyer has a will executed for a client and keeps the original in his office safe. He gives the client a photocopy that wasn’t signed. If the client destroys the copy with intent to revoke the will, the will still remains in effect. Sometimes, however the lawyer will make a "duplicate original" will (both documents are properly executed). If the testator tears up a "duplicate original," then the will is validly revoked.

If a will is not found at death, there is a presumption of revocation
This presumption arises if the testator is known to have will at her house and it’s in her possession. After she dies the will, the will can’t be found. There will be a presumption that the testator destroyed the will with intent to revoke the will. However, you can produce evidence to rebut. This presumption can be rebutted by showing someone had motive and opportunity to destroy the will.

If a will is found in a mutilated condition at the testator's death and when last seen it was in the testator's possession, there is a rebutable presumptino that the testator mutilated the will with the intent to revoke the will.

Codicil revocation
An act of physical revocation performed on a codicil will not revoke the will even if the testator intended to. Revocation of codicil only revokes the codicil. But, if you revoke the will, and not the codicil, the revocation of the will also revokes the codicil.

(iii) Revocation through operation of law
A will is revoked by operation of law through marriage or divorce. It is deemed that people would not want their wills to stand because of the change in circumstance. Unless you can show testator intended it to stay in effect, marriage or divorce will destroy previously made wills. This applies only to wills in California, and it does not apply to will substitutes.

(iv) "Revival" and Dependent Relative Revocation (DRR)
Revival occurs when will #2 is valid, then revoked. Will #1 is "revived." For example, will #1 is executed. Will #2 is executed, and will #1 is either expressly or implicitly revoked in whole or in part by will #2 (through a revocation clause or inconsistency). Then, will #2 is revoked. Is will #1 now admissible to probate as originally executed (i.e. is will #1 revived?). Generally no, will #1 is not revived, but in California, if the testator in revoking will #2, manifests an intent to revive will #1 to come back to existence, will #1 is revived. But you must show when will revoked will #2, the testator intended will #1 to be revived.

Dependent relative revocation is a different concept. It occurs when will #2 was never valid to begin with or does not properly effectuate the testator's inent. Will #1 is "unrevoked." Generally DRR arises when you revoke will under a mistake. DRR is also called “conditional revocation” or “second best doctrine.” The basic idea is that a revocation (will #1) is dependent (conditional) upon another disposition (will #2) being effective/valid. For example, assume testator revokes will #1 by tearing it up and drafts will #2 in its place. She thought that will #2 is valid, but it’s not -- or perhaps will #2 does not effectuate intent because of the disinterested witness rule or because it didn't meet the wills formalities. Testator would not have revoked will #1 if she knew the truth, that will #2 is invalid / ineffective. Therefore the will #1 remains in effect. The rule is this:

If the testator revoked his will under the mistaken belief that a substantially identical will or codicil effectuates his intent, then by operation of law, the revocation of the first will be deemed conditional or dependent on the second will effectuating the testator’s intent. If the second will does not effectuate the testator’s intent, then the first will, was never revoked.

Under DRR, will #1 is not revoked if 3 elements are met.

First, the testator must revoke a will (usually by physical act and sometimes by a subsequent instrument).

Second, the testator must have had a mistaken belief of law or fact at time of revocation. For example, when revoking will #1, T thought will #2 was valid or that will #2 would effectuate his intent.

Third, the testator would not have revoked will #1 if he knew the truth. If the testator would rather have will #1 apply than his propert pass through intestacy, then it's good evidence that he wouldn't have revoked will #1 if he knew the truth.

DRR is really "the second best doctrine" because it won’t give the testator his first choice. It will un-revoke will #1 but your really wanted will #2. It won’t make will #2 valid. But if you’d rather have will #1 than have it go by intestacy, then DRR can help.

Promises not to revoke or promises to make a will
Promises not to revoke is governed under contract law. The non-breaching party can sue for specific performance, but there must be written evidence of the contract. CPC § 150(A)(1) ("provision of a will stating material provision of the contract, express reference to a contract in a will to a contract and extrinsic evidence proving the terms of the contract, in a signed writing by the decedent evidencing the contract"). Generally, a joint will or a mutual will won't create a presumption that it creates a promise not to revoke. However, some courts do hold that they promise not to change the joint plan.