In re Estate of Alburn - 18 Wis. 2d 340, 118 N.W.2d 919 (1963)

Rule:

The doctrine of dependent relative revocation is based upon the testator's inferred intention. Under the doctrine, the destruction of a later testamentary document is intended to be conditional where it is accompanied by the expressed intent of reinstating a former will and where there is no explanatory evidence. Of course if there is evidence that the testator intended the destruction to be absolute, there is no room for the application of the doctrine of dependent revocation.

Facts:

Ottilie L. Alburn, a resident of the city of Fort Atkinson, Jefferson county, died on November 13, 1960, at the age of eighty-five years. On December 5, 1960, Adele Ruedisili, a sister of deceased, filed a petition for appointment of an administrator of the estate, which petition alleged that deceased died intestate. Thereafter, Viola Henkey, a grandniece of the deceased, filed a petition for the probate of a will which deceased executed at Milwaukee, Wisconsin, in 1955 (hereinafter the 'Milwaukee will'), in which Viola Henkey was named a legatee and also executrix. After the filing of these two petitions, Lulu Alburn and Doris Alburn filed a petition for the probate of a will which deceased executed at Kankakee, Illinois, in 1959 (hereinafter the 'Kankakee will'). Neither of these last-named petitioners was a next-of-kin of the deceased but Lulu Alburn was a sister-in-law of deceased. Objections were filed to both the Milwaukee and Kankakee wills. The trial court determined that the Kankakee will had been destroyed by deceased under the mistaken belief that by so doing she would revive the Milwaukee will which had been revoked by the revocation clause of the Kankakee will. The court applied the doctrine of dependent relative revocation and held that the Kankakee will was entitled to probate. Adele Ruedisili has appealed, arguing that there was insufficient evidence to support the trial court’s conclusions.

Issue:

Did the trial court err in admitting the Kankakee will into probate under the doctrine of dependent relative revocation? 

Answer:

No.

Conclusion:

On review, the court affirmed the trial court's judgment. The court held that there was uncontroverted testimony from the decedent's sister-in-law that decedent had told her she intended the Milwaukee will to stand, that the testatrix had indicated that she did not wish to die intestate, that she took no steps after destroying the Kankakee will to make another will, and that both wills had similar provisions not providing for next-of-kin. On this basis it was not against the great weight and preponderance of the evidence that testatrix destroyed the Kankakee will in the mistaken belief that she was reviving the Milwaukee will. Thus, the doctrine of dependent relative revocation applied to support the probate of the Kankakee will.