## Facts

- Eva Callahan and her husband, Dr. John Callahan, Sr., repeatedly executed substantially identical wills reflecting a shared estate plan for their two sons, John Jr. and Albert.
- In 1940, they executed wills that reduced Albert’s share compared to John Jr.’s.
- In 1944, they executed new wills restoring equal shares to both sons; the wills were prepared by attorney Quincy Hale.
- On January 1, 1945, Hale visited the Callahans. John stated, in Eva’s presence, that they had destroyed their 1944 wills intending to reinstate their 1940 wills; Eva did not contradict him.
- On January 2, 1945, Hale advised John that destruction of the 1944 wills did not revive the 1940 wills and drafted a new will for John, which John executed.
- John died three days later.
- On January 21, 1945, Eva became ill, was hospitalized, and became incompetent before a new will could be executed; she died in June 1945.
- In probate, Hale offered Eva’s 1940 will and Eva’s 1944 will in the alternative; the wills differed materially because the 1944 will treated the sons equally while the 1940 will favored John Jr.

## Issues

1. Whether Eva’s destruction of the 1944 will constituted an absolute revocation or a revocation conditional on the mistaken belief that the 1940 will would be revived.
2. Whether the doctrine of dependent-relative revocation permits probate of the 1944 will when the intended revival of the 1940 will (or execution of a substitute will) failed.

## Decision

- The Wisconsin Supreme Court affirmed the order admitting the 1944 will to probate.
- The court held that Eva’s revocation of the 1944 will was conditional on the assumed revival of the 1940 will.
- Because the assumed revival was legally ineffective and no substitute will was executed before Eva’s incapacity and death, the condition failed.
- Under dependent-relative revocation, the attempted revocation was disregarded and the 1944 will remained operative.

## Legal Principles

- A revocation of a will may be treated as conditional when made in reliance on a mistaken assumption that a prior will is revived or that a substitute disposition will take effect.
- If the condition motivating revocation fails, dependent-relative revocation allows the court to treat the revoked will as remaining in force to implement the testator’s probable intent.
- Probable intent may be inferred from a consistent, coordinated testamentary plan and circumstances indicating an intent to change dispositions rather than to die intestate.

## Conclusion

The court applied dependent-relative revocation to probate Eva Callahan’s 1944 will, concluding that its destruction was conditioned on a mistaken belief that the 1940 will would be reinstated and that, because no effective substitute took effect, the 1944 will best reflected her intended distribution at death.


In re Callahan’s Estate, 251 Wis. 247, 29 N.W.2d 352 (Wis. 1947)