Carter v. First United Methodist Church of Albany

Brief Fact Summary. Two instruments were found among the decedent’s personal effects when she died. One instrument was a formal will with pencil marks scratching out several provisions. The other instrument was a handwritten note titled the decedent’s will but was unwitnessed and unsigned. The Propounder contends that the first instrument should be admitted to probate.

Synopsis of Rule of Law. When a will is cancelled on the belief that a new will is valid or on the intention of making a new will and the revocation of the old will is so related to the making of the new will the Court will apply the doctrine of dependent relative revocation to give effect to the old will.

Facts. When the decedent died an instrument executed in 1963 was found among her personal papers. It was folded together with a handwritten instrument dated May 22, 1978. The handwritten note was titled her will but it was unwitnessed and unsigned. Pencil marks had been made through several provisions of the 1963 instrument. The decedent had made it known to her attorney that she needed his services in order to change and revise her will and that she had written out some proposed changes on paper. The trial court found that the decedent did not intend to revoke her will be scratching through some of its provisions and writing out the proposed changes on paper. The Caveator contends that the court erred in admitting the will to probate because the Propounder did not produce any evidence to rebut the presumption of revocation.

Issue. Did the trial court err in admitting the decedent’s will to probate with scratched out provision over the presumption that it had been revoked?

Held. No. Affirmed. The trial court did not err in admitting the will to probate under the doctrine of dependent relative revocation. There was sufficient evidence to rebut the statutory presumption of revocation and give rise to a presumption in favor of the Propounder.

Discussion. The doctrine of dependent relative revocation can be summarized as when a testator intended to make a new will, or made one which failed, will not alone prevent a cancellation of a will from operation as a revocation. If it is clear that the cancellation and the making of a new will were part of one scheme and the revocation of the old will was so related to the making of the new will as to be dependent upon it then the new will not being made or being held invalid will allow the old to be given effect. Here the Court found evidence in support of the application of the doctrine of the dependent relative revocation.