SW Legal Educational Publishing

Will Properly Revoked; Testator Died Intestate
Description Testator revoked a 1985 will when she drew up a new will in 1990. The 1990 will was ineffective due to lack of witnesses. The 1985 will was held to be revoked because of her clear intent to do so and because the later attempted will had a very different distribution scheme.
Topic Wills, Estates, and Trusts
Key Words Revocation
C A S E   S U M M A R Y
Facts When Binco died in 1994, she left three wills. The wills from 1990 and 1994 were "ineffective because they lack the signatures of attesting witnesses." When she drew up the 1990 will, she wrote on the back of her 1985 will "VOID--NEW WILL DRAWN UP 6-28-90." The issue is if the 1985 will was revoked by Binco, in which case she died intestate.
Court Decision The law disfavors intestacy and requires that, when reasonably possible, wills be construed to avoid that result. Under the "mistake of law" branch of the doctrine of dependent relative revocation doctrine, revocation of a will is disregarded when it was based on the assumption by testator that the will being revoked would be replaced by a valid new will. The doctrine of dependent relative revocation is not applied here to save the revoked will because testator clearly intended to revoke the 1985 will and the later will, although ineffective, had a very different dispositive scheme.
Citation Kroll v. Nehmer, 705 A.2d 716 (Ct. App., Mary., 1998)

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