## Facts

- Lott Johnson executed a duly attested will in 1937 that made bequests to beneficiaries including Stewart and others.
- In 1938, Johnson executed a new will that expressly revoked the 1937 will, but the 1938 will was defectively executed because it lacked the required attesting witnesses.
- In preparing the 1938 will, Johnson incorporated passages from the 1937 will, and the two instruments reflected substantially similar dispositive plans.
- The original 1937 will was lost; a carbon copy retained by the drafting attorney was available.
- The 1938 will was adjudicated invalid, and the estate initially proceeded as an intestacy, under which Johnson’s widow would take substantially more and the 1937 beneficiaries would take nothing.
- The 1937 beneficiaries petitioned to re-establish and probate the lost 1937 will under the doctrine of dependent relative revocation.
- The probate court re-established the 1937 will and admitted it to probate; the circuit court reversed; the beneficiaries appealed.

## Issues

1. Whether the doctrine of dependent relative revocation permits probate of a prior will that was expressly revoked by a later will when the later will is invalid.
2. Whether the evidence supported treating the revocation of the 1937 will as conditional on the effectiveness of the 1938 will, reflecting a preference for the prior scheme over intestacy.
3. Whether the probate court properly re-established the contents of the lost 1937 will from a carbon copy and supporting proof.

## Decision

- The Florida Supreme Court reversed the circuit court and reinstated the probate court’s order admitting the 1937 will to probate.
- The court adopted and applied dependent relative revocation, concluding the attempted revocation in the 1938 instrument did not operate because the 1938 will was invalid.
- The court found the evidence supported that Johnson did not intend to die intestate and believed the 1938 instrument would dispose of his estate.
- The court left undisturbed the probate court’s determination that the carbon copy accurately reflected the lost 1937 will and that the requirements to re-establish it were satisfied.

## Legal Principles

- Dependent relative revocation applies when a testator revokes a valid will while making a new will, and the new will is invalid; the prior will may be treated as not revoked if the revocation was dependent on the new will’s validity and the testator preferred the prior disposition to intestacy.
- A revocation clause contained in an invalid later will may be disregarded when the circumstances show the testator’s intent was to revoke only as part of an effective substitute testamentary plan.
- A lost will may be re-established and admitted to probate upon sufficient proof of its contents and due execution, including reliable secondary evidence such as a retained copy.

## Conclusion

The court held that Johnson’s attempted revocation of his 1937 will was conditional on the validity of his 1938 will; because the 1938 will was invalid, the 1937 will was re-established and probated so the estate would pass under the prior testamentary plan rather than by intestacy.


Stewart v. Johnson, 194 So. 869 (Fla. 1940)