Legal Memorandum: Doctrine of Dependent Relative Revocation

Issue: Under Wisconsin law, if a prior will is reinstated after a subsequent will is found invalid, is it necessary to probate the original of the prior will?

The definition of “will” includes “properly executed duplicate originals” and also includes copies that have been “proven as a ‘will’ under Wis. Stat. § 856.17.”  Wis. Stat. § 851.31.  Section 856.17 provides:

If any will is lost, destroyed by accident or destroyed without the testator’s consent the court has power to take proof of the execution and validity of the will and to establish the same.  The petition for the probate of the will shall set forth the provisions thereof.

The courts distinguish, and do not include under this provision, the situation where the testator or testatrix intentionally destroys the will.  Intentional destruction of a prior will is generally deemed to revoke the prior will.  See In re Markofske’s Estate, 47 Wis. 2d 769, 775-78, 178 N.W.2d 9 (1970).  Even in these cases, though, the doctrine of “dependent relative revocation” may preserve the prior will.  “The usual situation for application of this doctrine arises where a testator executes a will and thereafter attempts to revoke it by making a later testamentary disposition which for some reason proves ineffective.”  Id. at 780.   In these cases a court may deem the prior will non-revoked, in an attempt to […]