## Facts

- Ottilie L. Alburn executed a will in Milwaukee in 1955; the original was retained by the drafting attorney.
- In 1959, after moving to Kankakee, Illinois, she executed a second will that expressly revoked the 1955 will.
- In June 1960, while living with family in Fort Atkinson, Wisconsin, Alburn tore up the 1959 will and directed that the pieces be discarded.
- After destroying the 1959 will, Alburn stated that the 1955 will was the one she wanted to “stand.”
- Alburn made no new will after destroying the 1959 will and died in November 1960.
- After death, her sister sought intestate administration; proponents offered the 1955 will and, separately, the 1959 will for probate.

## Issues

1. Whether the evidence supported the finding that Alburn destroyed the 1959 will under a mistaken belief that doing so would reinstate the 1955 will.
2. If so, whether dependent relative revocation renders the attempted revocation of the 1959 will ineffective, requiring probate of the 1959 will rather than intestacy.

## Decision

- The Wisconsin Supreme Court affirmed the order admitting the 1959 will to probate.
- The court held the trial court’s finding was not against the great weight and clear preponderance of the evidence.
- Because the destruction of the 1959 will was conditional on reviving the 1955 will, and that condition failed as a matter of law, the attempted revocation of the 1959 will was ineffective.
- Alburn did not die intestate.

## Legal Principles

- Dependent relative revocation (DRR) treats a revocation as conditional when it is performed with an expressed intent to reinstate a prior will and there is no explanatory evidence showing the revocation was intended to be absolute.
- When a testator revokes a later will based on a mistaken belief that the act revives an earlier will, DRR may be applied to disregard the revocation and keep the later will operative.
- DRR is grounded in inferred intent; absent evidence indicating an intent to die intestate, courts may prefer an outcome that preserves a testamentary plan over intestacy.

## Conclusion

Because the evidence supported that Alburn destroyed the later will believing it would reinstate the earlier will, and there was no contrary evidence of an intent to revoke absolutely or to die intestate, DRR applied and the later will was properly admitted to probate.


Estate of Alburn, 118 N.W.2d 919 (Wis. 1963)