Failure to Apply the Doctrine of Dependent Relative Revocation would have Resulted in the Residue of a 12 Million Dollar Estate Passing by Intestacy rather than a Residuary Beneficiary under a Prior Will

Posted on November 25, 2015

In Rocke v. American Research Bureau (In re Estate of Murphy), 2015 Fla. App. LEXIS 16740 (Fla. 2d DCA 2015), the Second DCA held that the probate court erred in concluding that a large majority of an estate of a decedent passed through intestacy pursuant to Section 732.103, Fla. Stat. because it failed to apply the presumption of dependent relative revocation to the decedent’s last will. The Second DCA noted that the doctrine was to be given a broad interpretation of similarity and that extrinsic evidence should be considered in cases involving undue influence because it furthers the doctrine’s underlying purpose of promoting testacy when possible. Moreover, there were sufficient similarities between the decedent’s last will and her prior wills to support application of the doctrine and, as the presumption was not rebutted, the revocation clause in the most recent will should have been deemed invalid and the residuary clause of an earlier will applied.

In the subject case, Virginia Murphy (“Decedent”) had executed multiple wills prior to her death.  Each will left a bequest to the Northwestern University medical school, to the Decedent’s second cousin (Rocke), to her attorney (Carey), to her attorney’s assistant (DuBois), and to her accountant (Tornwall) who died the year before the Decedent. Rocke challenged the Decedent’s last will, which devised the residue of her estate to Carey, DuBois, and Tornwall, alleging undue influence on the part of the Decedent’s lawyer and his assistant.  The probate court found that the lawyer and his assistant exerted undue influence over the Decedent. Therefore, the residuary devises to them in the last will were void.  However, the probate court also ruled that the remainder of the provisions of the will were valid and would control the disposition of the residue of the estate.  Based thereupon, it held that the residue of the estate passed by intestacy because the final will’s revocation clause which revoked all prior wills remained valid.  As a result, the residue of the estate would pass to 48 heirs identified by an heir search firm who were completely unaware of their familial connection to the Decedent.

On appeal, the issue was whether the probate court should have effectuated a prior will’s residuary devise under the doctrine of dependent relative revocation.  The Second DCA noted that the doctrine of dependent relative revocation, as adopted by the Florida Supreme Court, means that where a “testator makes a new will revoking a former valid one, and it later appears that the new one is invalid, the old will may be re-established on the ground that the revocation was dependent on the validity of the new one, [the] testator preferring the old will to intestacy.” Stewart v. Johnson, 194 So.2d 869, 870 (Fla. 1940).  The doctrine is “a rule of presumed intention” that creates a rebuttable presumption that the testator would have preferred to have an earlier will effectuated over statutory intestacy.  The presumption is dependent on whether the provisions of the invalid will are sufficiently similar to the former will.  In cases of undue influence, the presumption arises but may be rebutted by evidence that the revocation clause was not invalidated by undue influence.  The Second DCA observed that in cases of undue influence they would apply a broader definition of similarity, “one that takes into account the testamentary instruments themselves and any admissible evidence that may be relevant.”  The Second DCA noted that such similarity is construed broadly, and does not mean that the specific beneficiaries need to be the same, having people who are consistently not beneficiaries of the Decedent’s testamentary documents may be sufficient.  While adopting a broad construction of the doctrine’s similarity requirement from Wehrheim v. Golden Pond Assisted Living Facility, 905 So.2d 1002 (Fla. 5th DCA 2005), it rejected the Fifth DCA’s prohibition of considering extrinsic evidence when deciding the doctrine’s applicability in claims involving undue influence.  The doctrine of dependent relative revocation in a case of undue influence shifts the burden of proof to the parties opposing its application.  A probate court can consider any admissible, extrinsic evidence when measuring similarity for purposes of the doctrine’s application.  Once the doctrine’s presumption arises, consistent with Sections 90.302(2) and 733.107(2), Fla Stat., the burden of proof shifts to the opponent of the presumption to show that the testator held an independent, unaffected intention to revoke the otherwise affected will.

Applying those principles to the facts in this case, it was incumbent upon any party opposing the presumption to prove the most recent will’s revocation clause was untainted by the same undue influence that infected its residuary clause and that the Decedent had “an independent untainted intention to revoke all of her prior wills at the time she executed her 1994 will so that the bulk of her estate would pass by intestacy.”  No such showing was ever made.  The Second DCA held that the presumption that arose from the doctrine was never rebutted in the lower court, and the revocation clause in the last will should have been deemed invalid.  After stripping the undue influence that infected the residuary devises in the Decedent’s most recent wills, this left two alternate residuary devises that were untainted, the medical school at Northwestern University or Rocke.  The February 1992 will included a residuary devise to Rocke, and was the will closest in line to the 1994 will which included a residuary disposition to one of those two beneficiaries.  Since the Decedent’s prior wills were deemed to be sufficiently similar and because the Decedent repeatedly indicated a preference for testacy over intestacy, the Second DCA found that after excising the residuary devises to Carey and DuBois this left Rocke to stand.  The Second DCA held that the February 1992 will should have been admitted to probate with Rocke receiving the residue of the estate rather than distributing same through intestacy.  The Second DCA therefore reversed the probate court.

If you or anyone you know is in need of representation in actions involving Guardianship, Probate and/or Trust Disputes, or questions pertaining to such proceedings, please contact The Law Offices of Glenn M. Mednick, P.L., at (954) 315-1154 or

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