Professor Richard F. Storrow’s comprehensive article about the doctrine of dependent relative revocation (DRR) is one that I like lots because I learned so much reading it. I will try to summarize some of the highlights of the article—there are many more (including, for example, a discussion of student responses to one of his exam questions invoking DRR).
Professor Storrow notes that the body of jurisprudence around DRR “lacks coherence” (P. 499), and he provides, throughout the article, many different formulations of the doctrine from courts and commentators. He notes that DRR “holds that revocation [of a will] is legally invalid if a testator has made some sort of mistake in performing it—specifically a mistake either related to her motivation for revoking the will or related to what she desires that revocation to accomplish.” (P. 501.) He writes that some courts have viewed it as a rule of construction/interpretive device while other courts have viewed it as a rule of law/legal principle. (P. 499.) Ultimately, Professor Storrow proposes that DRR be situated “within the familiar framework of will interpretation” (P. 541) as an interpretive device that has two stages: the first stage “would ask whether the circumstances surrounding the revocation render the intent to revoke ambiguous,” and the second stage “would examine the probable intent of a reasonable testator to revoke or not to revoke in those circumstances” (P. 499).
In the first main part of the article, Professor Storrow provides the doctrinal underpinnings of DRR. He notes that, in most jurisdictions, common law limits corrections of wills to: “(1) misdescriptions of property or beneficiaries, (2) mistakes brought about through fraud, and (3) DRR.” (P. 500.) DRR has been “defined in various ways,” and Professor Storrow synthesizes certain common definitions of DRR to note that “DRR cases are of two types: one involving a new will or an intent to make one and another involving the testator’s misapprehension of the law or a fact material to the revocation.” (P. 501.) The Restatement acknowledges this “dual definition” and “recognizes that DRR applies when a testator revokes his or her will ‘in connection with an attempt to achieve a dispositive objective that fails’ and also when he or she does so ‘because of a false assumption of law’ or fact.” (PP. 501-502.) Professor Storrow notes, “Courts tend to apply the doctrine only if (1) an alternative testamentary scheme fails, or (2) the mistake is set forth in the writing that revoked the will and the mistake is beyond the testator’s knowledge.” (P. 502.)
Professor Storrow writes, “The law does not make perfectly clear whether DRR is a primary presumption, a presumption used to negate competing presumptions, or a canon of construction that establishes the probable intent behind a revocation.” (P. 503.) The policy behind DRR is “to help effectuate the testator’s intent.” (P. 503.) Professor Storrow then provides a comprehensive summary of the doctrines of revocation and revival, and (within his discussion of revocation) a summary of the following presumptions: (1) “a testator has revoked his will by physical act if the will was in his possession immediately before his death, but then after his death cannot be found,” (2) “when a testator has performed a revocatory act on a will, he did so with the intent to revoke it,” and (3) “one against intestacy.” (PP. 504-507.)
In the next main part of his article, Professor Storrow discusses the “substantive imprecision” of DRR, showing how it is “plagued with definitional variation” such as being defined as “a doctrine of presumed intention of what a testator would have done had he or she known that the new disposition that he or she was attempting to execute would be invalid” as well as “a doctrine of mistake” and “a doctrine in service of ‘the law’s preference for a testate disposition.’” (PP. 512, 513.) Professor Storrow then writes that “harmonizing the various iterations of the doctrine reveals that it can apply to three distinct types of revocation” (P. 513): (1) impliedly conditional revocation, (2) ineffective revocation, and (3) mistaken revocation. (PP. 513-526.) As to the view of DRR as mistaken revocation, Professor Storrow summarizes three sets of cases: (1) a cancellation of a will followed by a set of notes/a rough draft for future changes, (2) a partial revocation of a will by physical act and an attempted amendment to the will, and (3) a new will that validly revokes an earlier will but has dispositive provisions that are legally invalid. He discusses certain analytical problems with the three views of DRR, among them: (1) “impliedly conditional revocation” can be a “legal fiction that does not advance the analysis” (P. 516), (2) “ineffective revocation” can be “too broad . . . to accurately describe DRR” (P. 517), and (3) “mistaken revocation” can shift the focus away from what one court “rightly focused” on—the testator’s “lack of revocatory intent” (P. 521).
Concerned that “decisions applying DRR will continue to exhibit discontinuity and incoherence,” Professor Storrow suggests courts use a two-step process that “mirrors the familiar process of will interpretation.” (P. 530.) Courts should apply DRR when confronted with “ambiguous revocations, not ineffective, conditional, or mistaken ones.” (P. 530.) The first step is “to ascertain whether the facts and circumstances surrounding the revocation reveal that the intent behind the revocation is ambiguous” (which, he notes, “parallels the approach to disclosing latent ambiguities in wills”), and, at the second step, “the ambiguity must be resolved either with evidence of the testator’s actual intent or with canons of construction that impute intent based on what we conclude a reasonable testator would intend under the circumstances.” (P. 530.)
Professor Storrow then persuasively applies his proposed two-step analysis to certain cases he previously discussed. (PP. 532-535.) In general, he notes that, if a court uses DRR as a canon of construction, it need not discuss whether the revocation was mistaken or conditional and can instead focus on what the reasonable testator, under the circumstances presented, would intend. (P. 532.) Professor Storrow concludes that positioning his reenvisioned DRR “as a tool for determining a testator’s probable intent” (P. 541) provides three advantages: (1) promoting judicial economy, (2) harmonizing DRR with the law of will interpretation, and (3) serving as a reminder that DRR is “a tool for ascertaining probable intention.” (PP. 541-542.)