Law of Wills, 2016A

Hurricane Katrina, a large number of wills were probably destroyed as a result of the floods. Those
wills were destroyed without the testators’ consent, so they can be probated if their terms can be
proved from copies or otherwise.
2. The terms of the lost will must be proven. For example, K.S.A. 59-2228 provides “A lost or
destroyed will may be established if its provisions are clearly and distinctly proved. When such will is
established the provisions thereof shall be distinctly stated, certified by the court, and filed and
recorded. Letters shall issue thereon as in the case of other wills.”
3. A few states limit the probate of lost wills. For instance, N.R.S. 136.240(3) states “*** no will may
be proved as a lost or destroyed will unless it is proved to have been in existence at the death of the
person whose will it is claimed to be, or is shown to have been fraudulently destroyed in the lifetime
of that person, nor unless its provisions are clearly and distinctly proved by at least two credible
witnesses.”
4. In 1990, Pauline executed a will stating, “I leave my estate in equal parts to my nieces, Betty, Jean
and Clara.” In 2007, Pauline called her attorney and said, “I need you to tear up my will because I
don’t want my niece to get any of my things. I plan to leave it all to charity.” The attorney torn up
the will in front of his secretary and placed it in Pauline’s file. In 2014, Pauline was killed in a train
accident. Pauline’s nieces submitted the 1990 will for probate. Henry, Pauline’s sole intestate heir
filed an action contesting the probate of the will. What is the likely outcome of the case?
5. In 2000, Georgia executed a will stating, “I leave half of my estate to Dennis and half of my
estate to Wilma.” Georgia died in 2011. At that time, her will was found stuck inside of her
shredder. The will was intact and only had slight tears on the edge of the pages. Dennis and Wilma
submitted Georgia’s will for probate. What is the possible result?
11.6.3 Dependent Relative Revocation and Revival (DRRR)
Courts will honor the testator’s intent to revoke his or her will, but what if that intent is
based on misinformation. According to the DRRR, if the testator decides to revoke her will because
of a mistaken assumption of law or fact, the court will not give the revocation effect if evidence is
introduced showing that the testator would not have revoked the will if her or she had known the
truth. The doctrine is one of presumptive intent, not actual intent. It only applies where there is an
alternative plan disposition that fails or where the mistake is recited in the terms of the revoking
instrument or established by clear and convincing evidence. It is not enough just to revoke the will.
Consider the following examples.
Example:
T revokes her 2000 will because she thinks the jurisdiction will allow her to write a letter to dispose
of her property. The state does not recognize holographic wills, so the revocation is based upon a
mistaken assumption of law. The court will ignore the revocation and probate the 2000 will because
it presumes that T would not want to die intestate. The purpose is to carry out T’s intent.
Example:
509