## Facts

- Ella D. Patten executed a formally valid will in 1968 naming her son Robert as executor.
- In 1970, Ella executed a second instrument that changed some dispositive provisions and replaced Robert with her son Donald as executor.
- The 1970 instrument was later determined invalid for failure to comply with statutory execution formalities.
- Ella died on September 14, 1973; the original 1968 will could not be located, though a copy existed.
- Because the 1968 will was last known to be in Ella’s possession and was missing at death, Montana law applied a presumption that she destroyed it with intent to revoke.
- Robert sought a determination of intestacy.
- Donald sought probate of the copy of the 1968 will as a lost will and argued that the doctrine of dependent relative revocation (DRR) should disregard any revocation of the 1968 will because it was allegedly conditioned on the validity of the 1970 instrument.

## Issues

1. Whether DRR may be applied in Montana to disregard revocation of a prior will when a later will is invalid.
2. Whether the evidence was sufficient to overcome the presumption that the missing original 1968 will was destroyed with intent to revoke and to establish that any revocation was conditional.
3. Whether summary judgment was proper on the record presented.

## Decision

- The Montana Supreme Court affirmed summary judgment for Robert.
- The court recognized DRR as compatible with Montana law but held it inapplicable on these facts.
- The presumption that Ella revoked the 1968 will by destruction was not rebutted.
- The copy of the 1968 will was not admitted to probate, and Ella was treated as having died intestate.

## Legal Principles

- When a will last known to be in the testator’s possession cannot be found after death, a presumption arises that the testator destroyed it with intent to revoke.
- DRR may treat a revocation as conditional on the effectiveness of a new testamentary plan; if the new plan fails, the revocation may be disregarded.
- DRR requires clear and convincing (clear and substantial) evidence that the testator intended the revocation to be conditional; speculation about probable intent is insufficient.
- Meaningful differences between an earlier will and a later, invalid instrument may weaken any inference that the testator preferred revival of the earlier will over intestacy.
- Summary judgment is appropriate where no genuine issue of material fact exists and the proponent’s evidence cannot meet the required evidentiary standard as a matter of law.

## Conclusion

Montana permitted the doctrine of dependent relative revocation in principle, but refused to apply it absent clear evidence that the testator’s revocation of the missing earlier will was conditioned on the later instrument’s validity; with the presumption of revocation unrebutted, intestacy controlled.


In re Estate of Patten, 587 P.2d 1307 (Mont. 1978)