I am embarrassed to admit the time it took for me to realize that words beginning with the Latin prefix “re” generally denote something done over again: move and remove; solve and resolve; cognize and recognize. Relatedly, I’ve sometimes struggled with the concepts of two negatives equaling a positive, or whether “the enemy of my enemy” was (really) my friend.
In Reviving Revival in the Law of Wills, Professor Richard Storrow suffers no such problems. In addressing one of the more confounding doctrines of wills law–determining how to interpret the estate plan of a testator who executes a first will, follows it with a second valid instrument that fully or partially revokes the first, and later yet revokes the second will or codicil by physical act–he couples double-done and double-negative concepts to make and defend the straightforward proposition that revoking a revocation should equal revival. Indeed, by reminding readers of the ambulatory nature of wills – “the anchor grounding testators’ understanding that they can later change the testamentary plans they make today” – he makes and defends a more subtle point: that “the problem with revival doctrine is not so much one of testamentary intent but of testamentary expectation.” The act of revoking the second will, or the codicil, ought to restore the first will because a testator would expect that it does. This should surprise no one who holds to the notion that no will speaks until the death of its maker. But, Prof. Storrow intimates, it might surprise many readers to know that under modern doctrine, wills indeed speak immediately upon execution, perhaps most loudly to revoke any that had been written before. As such, Prof. Storrow’s article simultaneously revisits old doctrines with an eye toward clarifying them while also contemplating new and original theories of will .
First levels first. Through a then-to-now recounting of revival doctrine, Prof. Storrow clarifies the interplay between successive wills, dispatches muddled thinking around related but distinct doctrines, and reiterates how intent can be difficult to reconstruct, particularly as pulled from the mind of a now-dead decedent as inferred from conduct over words. For example, his piece explains why the revocation of an earlier will by a later one demands two valid wills: if Will #1 is invalid, it need not (indeed, cannot) be revoked, and if Will #2 is invalid, it cannot “do the revoking.” True, a finding of harmless error might turn otherwise invalid wills into valid ones, and, conversely, dependent relative revocation might render valid revocations void ex post facto. But while both doctrines might implicate revival, neither actually accomplishes revival. By turns overt and subtle, Prof. Storrow’s integrated reminders along these lines do hard work. It is often little more than a reappreciation for first principles that is needed to gently clear doctrinal clutter or confusion, which Prof. Storrow so nicely does.
This article, however, scrubs even harder, and given conventional truisms, perhaps uncomfortably so. Because the first principles above lead to second and perhaps more theoretical ones: it is impossible for wills that were never “alive” to begin with to be returned or resurrected to that state, just as wills never validly revoked are in no need of revival. Otherwise stated, there is no need to resuscitate that which hasn’t stopped breathing. So precisely when do wills stop breathing? When, more, do they die?
Determining the moment when revocation should be treated as documentary death seems easy, for example, when the testator’s intent to revoke is coupled with a statutorily compliant act. However odd to do so in front of witnesses in a way later evidentiarily admissible, few would dispute that destroying Will #1 while hollering “this destruction is animated by my intent to revoke” would qualify precisely as an intentional revocatory act. The more difficult consideration, and the one that Prof. Storrow invites and frames, pertains to when Will #1 is revoked not by act but by Will #2. Does revocation occur right away, such that Will #2 speaks as a “revocator” immediately upon execution, or should it be deferred until after the Testator has died with Will #2 intact? Revival effectively says, “Wait. No will speaks until the death of its maker, and if Will #2 is itself revoked before then, then Will #1 never died.” But anti-revival rules and presumptions suggest the contrary in often convoluted ways, such as when Will #1 is revoked by Will #2 and then Will #2 is revoked by physical act— then the decedent would be treated as dying intestate even if Will #1 remained intact. Reaching this outcome within the venerable shadow of “ambulation” is doctrinally inconsistent if not tortured, by allowing that even if Will #2 could not speak immediately to distribution (what it “gave”), it could speak immediately to revocation (what it “withdrew”). Set aside the reality that revocation often redirects the decedent’s estate from will beneficiaries to intestate heirs . If all of this seems a bit much, Prof. Storrow would likely agree. He might continue more directly by saying it is also wrong.
Consider what the average person would think about revoking a revocation, or what the average court might presume about the average testator’s intent. Neither picture is pretty, and it may also be that neither is clear. But both aspects – likely intent and efficiency, nice when aligned but often, not – inform Prof. Storrow’s thinking in his slightly different call to “revive revival.” By asserting that revival “should be the default rule in all cases of multiple revocation,” but permitting non-revival as “available by express election,” he targets the lamentable state of current doctrine and posits an “error-minimizing ” that would reduce transaction costs. I believe he succeeds.
I asked one of my thoughtful, non-lawyer sons to imagine playing solitaire. I asked what would happen were he to cover a then-particular unplayable card with an also unplayable later card. “I can’t play either card right now, the earlier or the later. But if I can later remove the later one, the earlier one is back in play. The game’s not over until I cannot play any more.” Solitaire might be a poor analogy to draw to the law of will execution, revocation, and revival, notwithstanding its similarly solitary thrust and the potential for late-breaking reversals. But if the goal of probate is to (1) discern likely, sensible intent, (2) at an acceptable cost, and (3) in a way that breaks no rules and is in fact consistent with traditional will-making theory, there is nothing not to like in Prof. Storrow’s work. More affirmatively, it works. Removing a negative is a positive, and the friend of my friend is my friend.
