What happens when a person writes a new will, revokes his or her previous valid will, and the probate court later determines that the new will is invalid? Usually, the person will be considered to have died intestate, i.e., without a will, and his or her property will be distributed according to the Florida intestate succession statutes. However, there is a way to “revive” the revoked valid will. The doctrine of dependent relative revocation (“DRR”) allows a revoked will to be revived when revocation of that will was conditioned upon the validity of the new will.
The DRR doctrine creates a presumption that the decedent would have preferred to revive his earlier will rather than die without a will and let his or her property pass through Florida’s intestate succession statutes. Essentially, the DRR doctrine is based on two presumptions: (1) the decedent did not intend to die without a will, and (2) the decedent revoked his or her previous will on the condition that the new will is valid. Courts are more likely to apply these presumptions when the provisions of the revoked valid will and the new invalid will are similar.
In Stewart v. Johnson, 142 Fla. 425, 428 (Fla. 1940), the Florida Supreme Court applied DRR to revive a revoked will. Lott Johnson had his attorney draft a will in 1937. One year later, Mr. Johnson revoked his will and made a new one, but he did not have his attorney draft it. Instead, Mr. Johnson dictated the provisions of his new will to his secretary who then signed the new will as the sole witness. Both wills made substantial bequests to a woman who lived with Mr. Johnson. Because Florida law requires that two witnesses sign a will, Mr. Johnsons’ new will was invalid. The Court found that Mr. Johnson’s revocation of his previous will was conditioned on the validity of the new will. Applying the DRR doctrine, the Court revived the revoked will.