Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Tuesday, April 29, 2008

Prior will admitted to probate through application of dependent relative revocation

IndianaThe testator’s will gave his estate to his spouse if she survived and, if she did not survive, to two of his three children by a prior marriage.

The testator executed a new will making all three children contingent beneficiaries.

On returning home from his lawyer’s office where he executed the second will, he destroyed the prior will stating that he did not want the third child to know he had been omitted from the prior will.

After the testator’s death, the three children challenged the second will alleging it had not been property executed.

In In re Estate of Oliva, 880 N.E.2d 1223 (Ind. Ct. App. 2008), the court affirmed the dismissal of the children’s action, holding that if the second will were invalid, the prior will would be admitted to probate under the doctrine of dependent relative revocation because the destruction of the prior will was “clearly conditional” on the validity of the new will and intestacy would be contrary to the testator’s intent as shown in both wills.


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