Estate of Alburn

The Facts

    • T died on Oct. 13, 1960 at age of 85
    • WW named GN as a legatee and executrix
    • L and D and not kin to T, but L was a sister-in-law
    • T had no children
    • Starting in 1954, she began living w/ her GN in Wisconsin
    • T executed WW and left it with the lawyer who drafted it
    • In early 1959, T moved to Illinois where she lived w/ her brother Robert, during which time she executed IW
    • In June 1960, T moved back to Wisconsin and moved in w/ brother Edwin until her death
    • Before her death, T told Edwin that she “got rid of” her IW
    • T had the torn pieces of IW tied in a handkerchief
    • Edwin put the pieces in a bag and took them to the dump and let them fly in the wind as instructed
    • Edwin failed to find any other will after T’s death

Procedural History

  • On Dec. 5, 1960, T’s sister filed a petition for appointment of an administrator, alleging that T was intestate.
  • T’s g-niece filed a petition to probate a will that T had executed in Wisconsin in 1955
  • L and D filed a petition to probate a will that T executed in Illinois in 1959
  • Objections were filed to both wills
  • TC found that T had tried to destroy IW in order to revive WW
  • TC used doctrine of dependent relative revocation to hold that IW was entitled to probate
  • Sister appealed
  • GN did not appeal

The Issue

  • Whether the finding of TC that T revoked IW under mistaken belief that she was thereby reinstating the prior WW is against the great weight and clear preponderance of the evidence

The Rule

  • The doctrine of dependent relative revocation is based upon the T’s inferred intention.
  • It is held that as a matter of law the destruction of the later document is intended to be conditional where it is accompanied by the expressed intent of reinstating a former will and where there is no explanatory evidence
  • Of course if there is evidence that T intended the destruction of the document to be absolute, there is no room for the application of the doctrine.

The Holding/Disposition

  • No, affirmed

Court’s Reasoning

  • S argues that since the statement about the intent for WW to stand was not made contemporaneously w/ the destruction of IW
  • No evidence of any change of circumstances occurring thereafter that would indicate any reason why T should die intestate and 9/10 of her estate go to next of kin not mentioned in either will

T did seem to have a mistaken belief that the destruction of the IW would reinstate the WW

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