## Facts

- Virginia E. Murphy died in 2006 at age 107, leaving an estate of nearly $12 million and no spouse, children, or siblings.
- Over several years, Murphy executed multiple wills drafted by her attorney, Jack S. Carey.
- Earlier instruments reflected a consistent plan to benefit a small group, including her second cousin Jacqueline Rocke, Carey, Carey’s assistant Gloria DuBois, her accountant George Tornwall, and at times a charity; they generally excluded numerous collateral relatives.
- A 1994 will revoked prior wills, named Carey as personal representative, and left the residuary estate primarily to Carey, DuBois, and Tornwall; Rocke received a fixed bequest.
- After Murphy’s death, the 1994 will was offered for probate.
- Rocke contested the 1994 residuary devises, alleging undue influence by Carey and DuBois.
- The probate court found undue influence and voided the residuary clause as to Carey and DuBois, but held the revocation clause effective, causing most of the estate to pass by intestacy to many distant relatives.
- After an earlier appeal and remand, the probate court again refused to apply dependent relative revocation (DRR), and Rocke appealed.

## Issues

1. Whether DRR applies when a later will’s revocation clause would cause intestacy because the later will’s residuary disposition is void for undue influence.
2. Whether sufficient similarity among successive wills triggers a presumption that revocation of prior wills was conditional on the effectiveness of the later dispositive scheme, and who bears the burden once the presumption arises.
3. If DRR applies, whether a prior will’s residuary clause should be given effect to avoid intestacy.

## Decision

- The appellate court reversed the probate court’s post-remand order and remanded.
- The court held the probate court erred by failing to apply the presumption of DRR to the 1994 will’s revocation of prior wills.
- The court concluded the testamentary instruments were sufficiently similar in overall plan—favoring a limited set of beneficiaries and excluding collateral heirs—so intestacy was contrary to the likely intent.
- The court held the probate court misallocated burdens by placing the onus on the DRR proponent rather than treating DRR as a burden-shifting presumption.
- The court directed that a prior will’s residuary scheme (including the earlier instrument that included Rocke among residuary beneficiaries) be re-established rather than distributing the residue by intestacy.
- The court did not disturb the finding that the 1994 residuary devises to Carey and DuBois were void for undue influence.

## Legal Principles

- Under DRR, when a testator executes a later will revoking a prior valid will and the later will is invalid in a way that defeats the testator’s dispositive plan, the prior will may be revived if the revocation is treated as conditional on the later will’s validity.
- Similarity for DRR is assessed broadly; the overall testamentary pattern and consistent exclusion of certain classes of heirs can satisfy similarity even if specific beneficiaries change.
- A court may consider admissible extrinsic evidence to assess similarity and intent for DRR purposes.
- Once the DRR presumption arises, it operates as a burden-shifting presumption requiring the opponent to show an independent intent to revoke the earlier will regardless of the later will’s effectiveness.
- Voiding a residuary disposition for undue influence does not require intestacy if a prior, consistent testamentary scheme can be revived through DRR.

## Conclusion

The court held that, after undue influence voided the residuary gifts in the 1994 will, the revocation of prior wills was presumptively conditional and DRR required revival of a prior residuary scheme, preventing distribution of the bulk of the estate by intestacy.


In re Estate of Murphy, 184 So. 3d 1221 (Fla. Dist. Ct. App. 2d Dist. 2016)