Just because someone expressly revokes a prior will when they make a new will does not mean that the revoked will can never be effective again. Given, it is rare that a revoked will is revived in Tennessee probate litigation, but it has happened.
In a recently decided probate lawsuit, the Court of Appeals of Tennessee upheld a trial court’s revival of a will which had been expressly revoked. Here are the basic facts:
- Dad had three adult children (two daughters and a son)
- Dad had a companion with whom he had lived with in his house for about 30 years named Rebecca Dudley
- In 2005, Dad executed a will which left real and personal property equally to his three children and in which he granted Ms. Dudley a life estate in his house, vehicle, garage and yard
- In the 2005 will, Dad’s residuary estate was left solely to his son
- In 2011, Dad executed a new will
- The 2011 will expressly revoked all prior wills
- The 2011 will was just like his 2005 will, except it divided his residuary estate equally among his children
- Dad died at age 77 at which time he was of sound mind
- The original of the 2011 will could not be found
- The original of the 2005 will was found in Dad’s personal file cabinet
After Dad’s death, his children took the position that he had died intestate. If he had died intestate, Ms. Dudley would not be entitled to a life estate in any of Dad’s property. Ms. Dudley took the position that the 2005 will had been revived after it was revoked. Both the trial court and the appellate court agreed with Ms. Dudley’s position. The appellate court’s opinion is discussed in this blog.
The court pointed out that, under long-standing Tennessee probate law, a revoked will can be revived. In order for a revoked will to be revived, the proponent of the will must show, by a preponderance of the evidence, that the testator intended to revive the revoked will.