## Facts

- Patrick J. Oliva executed a will in 1995 naming his wife, Judith A. Oliva, as primary beneficiary and naming Debra Oliva-Foster, Judith’s daughter Cheryl, and Patrick Jr.’s two children as contingent beneficiaries; Patrick Jr. was not a contingent beneficiary.
- On March 13, 2002, Patrick executed a new will naming Judith as primary beneficiary and listing Debra, Cheryl, and Patrick Jr. as contingent beneficiaries.
- After executing the 2002 will, Patrick instructed Judith to tear up the 1995 will, which she did in Patrick’s presence; Patrick stated he wanted to ensure Patrick Jr. would not learn he had been omitted from the 1995 will.
- Patrick died on March 16, 2003, and the 2002 will was admitted to probate.
- Debra and Patrick Jr. filed a will contest alleging the 2002 will was invalid due to improper execution, focusing on witness-signing requirements.
- During the dispute, an electronic copy of the 1995 will was recovered.
- The children sought summary judgment that the 2002 will was invalid, the 1995 will was revoked and could not be revived, and the estate should pass by intestacy.
- Judith sought summary judgment that, if the 2002 will failed, dependent relative revocation (DRR) rendered the revocation of the 1995 will ineffective.
- The trial court granted Judith’s motion and denied the children’s motion, applying DRR; the children appealed.

## Issues

1. Whether the revocation of the 1995 will was conditional on the effectiveness of the 2002 will such that DRR required treating the revocation as ineffective and reviving the 1995 will if the 2002 will failed.

## Decision

- The Court of Appeals of Indiana affirmed summary judgment for Judith.
- The court held the 1995 will’s destruction was a conditional revocation dependent on the assumption that the 2002 will would validly replace it.
- Applying DRR, the court treated the revocation of the 1995 will as ineffective once the 2002 will was challenged as invalid for purposes of the summary-judgment posture.
- The estate was to be administered under the 1995 will rather than by intestate succession.

## Legal Principles

- Dependent relative revocation permits a court to disregard a revocation made on a mistaken assumption and dependent on the validity of a new testamentary disposition; if the later disposition fails, the revocation is treated as ineffective.
- The central question under DRR is testamentary intent: whether the testator revoked the earlier will only because the testator believed a new will would control, not because the testator intended intestacy.
- Evidence supporting conditional revocation can include the timing of the revocation in relation to execution of the later will and statements explaining why the earlier will was destroyed.
- DRR is not treated as statutory “revival” or republication of a revoked will; it operates by treating the purported revocation as never having occurred when its condition fails.
- When comparing outcomes, courts may consider whether intestacy would materially depart from the testator’s consistent dispositive scheme reflected across successive wills.

## Conclusion

The court affirmed the application of dependent relative revocation, concluding that Patrick’s destruction of the 1995 will was conditional on the 2002 will serving as an effective replacement; therefore, to avoid intestacy and carry out Patrick’s apparent intent to favor his surviving spouse, the 1995 will was treated as operative.


Oliva-Foster v. Oliva, 880 N.E.2d 1223 (Ind. Ct. App. 2008)