Facts
- Mildred C. Tipton executed a formally valid will dated August 21, 1963.
- After her death, two documents were found among her papers: (1) the executed 1963 will and (2) a later handwritten document that was unsigned and unwitnessed and therefore not a valid will under Georgia law.
- The 1963 will contained pencil markings: diagonal lines through the name of one executor and through certain dispositions and bequests.
- Tipton had communicated with her attorney about revising her will and had drafted suggested changes, but she never executed a new will with required formalities.
- First United Methodist Church of Albany offered the 1963 will for probate; Luther Reynolds Carter filed a caveat, asserting Tipton’s pencil cancellations revoked the 1963 will and that the invalid handwritten document showed an intent to replace it, resulting in intestacy.
- The superior court found Tipton made the markings but held the 1963 will was not effectively revoked, applying dependent relative revocation (DRR), and admitted the 1963 will to probate.
Issues
- Whether Tipton’s pencil cancellations on material portions of the 1963 will, considered with the existence of a later invalid handwritten document, constituted an effective revocation of the 1963 will under Georgia law.
- Whether DRR applied so that any attempted revocation was conditional on the effectiveness of a replacement testamentary disposition, leaving the 1963 will operative when the replacement failed.
Decision
- The Supreme Court of Georgia affirmed the judgment admitting the 1963 will to probate.
- The court held the 1963 will was not effectively revoked in a manner that displaced it with intestacy.
- The court applied DRR, treating the apparent revocation as dependent on the assumption that a valid new will would be executed; because no valid replacement took effect, the 1963 will remained Tipton’s will.
Legal Principles
- A revocation by physical act requires revocatory intent; surrounding circumstances may show an act was not intended as an absolute revocation.
- Under dependent relative revocation, an apparent revocation is treated as conditional when made in connection with, and in reliance on, a contemplated new testamentary plan; if the new disposition fails (including for lack of execution formalities), the revocation is disregarded.
- When evidence indicates a testator was attempting to revise an existing will rather than abandon testacy, courts may apply DRR to avoid intestacy inconsistent with the testator’s intent.
Conclusion
Because Tipton’s penciled cancellations occurred as part of an uncompleted attempt to replace her 1963 will, and the intended substitute document was not validly executed, the court treated the cancellations as conditional under DRR and probated the 1963 will as her last will and testament.