## Facts

- Margaret Binco died on December 19, 1994, leaving four testamentary writings dated 1980, 1985, 1990, and 1994.
- The 1980 writing had been altered and was plainly invalid; it purported, among other things, to give Binco’s brother, Henry Kroll, a car.
- The 1985 will was properly executed under Maryland formalities, named multiple beneficiaries (including charities), and appointed Kenneth Nehmer as personal representative; it did not leave anything to Kroll.
- After executing the 1985 will, Binco wrote in large letters on the back of that document: “VOID — NEW WILL DRAWN UP 6-28-90.”
- The 1990 writing was entirely handwritten and lacked the attesting witnesses required by Maryland law; it significantly changed the dispositive plan and generally removed beneficiaries named in the 1985 will (Kroll still was not a beneficiary).
- The 1994 writing also was handwritten and unwitnessed and therefore failed as a will under Maryland law.
- Nehmer offered the 1985 will for probate and listed Kroll—Binco’s only heir at law—as an interested person.
- Kroll argued that the “VOID” notation revoked the 1985 will and, because the later writings were invalid, Binco died intestate, making him the sole taker.
- Nehmer argued that Binco intended to revoke the 1985 will only on the assumption that the 1990 writing would operate as a valid replacement, and that the 1985 will should be admitted under dependent relative revocation (DRR).
- The Orphans’ Court admitted the 1985 will under DRR; the Circuit Court affirmed; the Court of Appeals of Maryland granted review on its own initiative.

## Issues

1. Whether the doctrine of dependent relative revocation permits probate of a will that the testator expressly revoked by writing “VOID — NEW WILL DRAWN UP 6-28-90” on it, when the purported replacement will is invalid for lack of witnesses.
2. Whether the record supported treating Binco’s revocation of the 1985 will as conditional (dependent on the legal effectiveness of the 1990 writing), rather than absolute.

## Decision

- The Court of Appeals reversed the Circuit Court and remanded with instructions to reverse the Orphans’ Court’s order admitting the 1985 will to probate.
- The court held that Binco’s “VOID — NEW WILL DRAWN UP 6-28-90” inscription constituted an effective statutory revocation by cancellation of the 1985 will.
- The court declined to use DRR to set aside that clear revocation, finding no adequate basis to treat it as conditional or to reinstate the revoked 1985 will.
- The court noted that the 1985 and 1990 writings reflected materially different dispositive plans, making it improper to revive the 1985 plan through a judicial presumption about what Binco would have wanted if she had known the 1990 writing was invalid.

## Legal Principles

- Under Maryland law, a will may be revoked by the testator through an intentional act of cancellation on the instrument; an unambiguous revocatory notation can satisfy the statutory method of revocation.
- Dependent relative revocation, to the extent recognized, is a narrow doctrine based on a court’s conclusion that a revocation was dependent on a mistaken assumption (such as the validity of a substitute disposition) and that the testator would have preferred the prior will to intestacy.
- DRR should not be used to override an unequivocal revocation where the evidence does not show a conditional revocation and where reinstatement would benefit beneficiaries the testator later sought to remove.
- Substantial differences between the revoked will and the failed substitute instrument weigh against finding that the testator intended a single continuing plan that would justify revival of the prior will.
- Courts may not probate an instrument the testator has expressly declared void based only on speculation about probable intent, even if intestacy is the practical result.

## Conclusion

Kroll v. Nehmer holds that Binco’s handwritten “VOID — NEW WILL DRAWN UP 6-28-90” notation effectively revoked her otherwise valid 1985 will, and Maryland’s highest court would not use dependent relative revocation to resurrect that revoked will when the unwitnessed 1990 (and 1994) writings failed as wills and the later writing reflected a different distributive plan.


Kroll v. Nehmer, 705 A.2d 716 (1998)