§ 312 DEPENDENT RELATIVE REVOCATION

• Jurisdiction: South Carolina
• Section: Chapter 3 Wills

§ 312 Dependent relative revocation

If the testator revokes a will by mistake, the doctrine of dependent relative revocation may allow the effective cancellation of the revocation.¹¹⁸ Dependent relative revocation, or conditional revocation, considers the presumed effect of the testator's mistake on the revoked will. If pursuant to dependent relative revocation analysis, a court determines that the testator, hypothetically informed of the mistake, would prefer to cancel the revocation, the revoked will becomes valid again. The basis of dependent relative revocation is speculative because the testator was not aware of the mistake when revoking the will and obviously is no longer around to be apprised of the mistake and asked whether the revocation should stand. In that regard, therefore, the doctrine of dependent relative revocation guesses what an otherwise-informed testator would prefer to do.¹¹⁹

The application of dependent relative revocation involves a two-step process. First, the court determines whether the testator revoked the will by mistake. If so, the court then decides what the testator would prefer to do in light of the mistake: cancel the revocation or continue treating the will as revoked. If the court determines that the testator would prefer to cancel the revocation, it will treat the will as valid.

Usually, extrinsic evidence is necessary to administer both steps of the process. Consequently, a court might be more comfortable using dependent relative revocation when the testator revoked by physical act,¹²⁰ which requires resorting to extrinsic evidence in every event to determine that the intent to revoke accompanied the...