Legal Memorandum: Dependent Relative Revocation Doctrine

Issue: Under California law, has a court ever made a decision in which a will, trust, or amendment thereto is only partially invalidated to reinstate or revives the corresponding provisions of the most-recent prior instrument?

Area of Law: Estate Planning & Probate
Keywords: Doctrine of dependent relative revocation; Partially ineffective revocations; Reinstate
Jurisdiction: California
Cited Cases: 65 Cal. Rptr. 2d 307
Cited Statutes: None
Date: 05/01/2006

Under the doctrine of dependent relative revocation, an earlier testamentary instrument, revoked only to give effect to a later one on the supposition that the later one is effective, remains in effect to the extent that the latter proves ineffective.  See 64 Cal. Jur. 3d Wills § 300 (2006).  This general statement of the doctrine makes it clear that it applies in the context of partially ineffective revocations (which suggests that parts of the earlier document remain effect).  The follow-up research revealed one fairly recent decision in which the court explicitly held that when an earlier testamentary instrument is revoked by a later one, and but “for want of proper execution or other cause” a portion of the later instrument proves ineffective, the underlying provision in the earlier instrument remains in effect.  See Estate of Anderson, 56 Cal. App. 4th 235, 251, 65 Cal. Rptr. 2d 307, 317 (1997) (emphasis in original).    

In Anderson, a revocation clause in the testator’s second will purported to revoke all former wills.  The court contemplated whether that clause was sufficient to revoke the exercise of a power of appointment in the first will.  The court held that it was, unless the doctrine of dependent relative revocation applied.  “[T]he sole justification for the use of dependent relative revocation is to effectuate the decedent’s intent as nearly as possible,” the Anderson court explained.  Id. at 245, 65 Cal. Rptr. 2d at 313.  Thus, in each case the problem is […]

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