Legal Memorandum: Doctrine of Dependent Relative Revocation

Issue: Under Wisconsin law, if a will is found invalid on either the grounds of undue influence or competency, is the next prior will of the decedent reinstated?

The Wisconsin Probate Code was amended effective January 1, 1999.  The amendments revised Code sections 851 (General Provisions), 852 (Intestacy), 853 (Wills) and 861 (Family Rights), and added new provisions to section 854 applicable to all transfers at death.  The amendments became effective January 1, 1999, and apply to all revocable estate planning instruments in existence on that date, and to all instruments executed on or after that date.  See Howard S. Erlanger, Wisconsin’s New Probate Code, 71-Oct. Wis. Law. 6 (1998).

Research revealed no Wisconsin cases directly on point, nor is the question addressed by the Wisconsin Probate Code.  However, it now appears that the issue may be governed by the doctrine of “dependent relative revocation.”

The doctrine of “dependent relative revocation” applies to the following set of facts (among others):  The testator or testatrix executes one will.  Later, he or she revokes the will by execution of a subsequent will.  For some reason, the later will fails to take effect.  The doctrine provides that, under these circumstances, the revocation of the earlier will is related to and dependent upon the finding of the validity and the efficacy of the subsequent will.  The doctrine provides that where the later will is held to be invalid, the earlier will stands. See In re Lundquist’s Will, 211 Wis. 541, 543, 248 N.W. 410 (1933); In re Marvin’s Will, 172 Wis. 457, 179 N.W. 508 (1920); In reRauchfuss’ Estate, 232 Wis. 266, 287 N.W. 173 (1939).

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