PROBATE CORNER

By: David M. Garten, Esq.

ARTICLE: Holy Revival! Reviving The Decedent’s Former Will

“The revocation by the testator of a will that revokes a former will shall not revive the former will, even though the former will is in existence at the date of the revocation of the subsequent will.” See, §732.508(1), F.S. However, if the testator’s current will fails for lack of validity, as opposed to a voluntary revocation, it will be presumed under the doctrine of dependent relative revocation (“DRR”) that the revocation of the former will was conditioned on the validity of the current will. In other words, DRR creates a rebuttable presumption that the testator would have preferred to revive his earlier devises through his former will rather than let the property go by intestacy. See, Wehrheim v. Golden Pond Assisted Living Facility, 905 So. 2d 1002 (Fla. 5th DCA 2005).

PARTIAL v. TOTAL INVALIDITY: If the execution of a will is procured by fraud, duress, mistake, or undue influence, the will or any part so procured is void, but the remainder of the will not so procured shall be valid if it is not invalid for other reasons. See, §732.5165, F.S. For example, if the court finds that the revocation clause of the current will is valid but that the remainder of the will is invalid, the testator’s property may go by intestacy.

SIMILARITIES BETWEEN WILLS: The application of DRR hinges, in part, on whether “the provisions of the current invalid will are sufficiently similar to the former will.” In order to determine whether the presumption exists or is rebutted, the court must confine its inquiry to the testamentary documents before it without resort to extrinsic evidence. Hence, in order to determine the testator’s presumed intent, the court must consider whether the provisions of the present invalid will are sufficiently similar to the former will. If the later revoked will is sufficiently similar to the former will, then the court can more easily indulge the presumption that the testator intended the revocation of the former will to be conditional on the validity of the later will and that the testator prefers the provisions of the former will over intestacy. See, Wehrheim, supra.

UNDUE INFLUENCE/EXTRINSIC EVIDENCE: However, in cases of undue influence, the court’s inquiry is not confined to the four corners of the testamentary documents before it. The presumption of DRR only requires a showing of “broad similarity” between a decedent’s current will and his former will; therefore, the probate court may consider any admissible, extrinsic evidence when measuring similarity for purposes of DRR’s application. Extrinsic evidence may be essential in order to grasp the true testamentary intentions of a testator who has left multiple wills, some of which may or may not have been affected, to some degree, by another’s undue influence. Without resort to extrinsic evidence, a proponent for the doctrine’s presumption may have no viable means of showing sufficient similarity between the tainted and untainted portions of testamentary documents and an adverse party would never have a way to rebut the presumption. Therefore, in cases involving undue influence, a probate court is not confined to the testamentary documents when determining whether the doctrine of dependent relative revocation should apply. Upon a finding of undue influence, a probate court may consider any relevant, admissible evidence to decide if the testator intended a will’s revocation clause to be conditional upon the will’s efficacy. See, Rocke v. Am. Research Bureau (In re Estate of Murphy), 2015 Fla. App. LEXIS 16740 (Fla. 2nd DCA November 6, 2015).

BURDEN OF PROOF POST-DRR: When the presumption of DRR arises, the burden of proof shifts to the opponent of the presumption to show that the testator held an independent, unaffected intention to revoke his former will. See, Rocke, supra.