In Tennessee, Revoked Wills Can Be Revived

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 Dudley took the position that the 2005 will had been revived after it was revoked.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.

The most compelling facts that the court found which mitigated in favor of a finding that Dad intended to revive the 2005 will were that, even though Dad had had discussions about his estate and the changing of his will, there was never any indication that he intended to deprive Ms. Dudley of a life estate in his home and other property, or to die intestate. The court also noted that Dad and Ms. Dudley had enjoyed a long and loving relationship.  Moreover, the court found it significant that Dad, near the end of his life, had told his daughters and granddaughters how he wanted his estate distributed and that what he had expressed was not “entirely inconsistent” with the distribution set forth in the 2005 will.

There was also evidence, which was apparently unrefuted, that Dad’s daughter and granddaughter, with whom he had had discussions about his intentions, advised him to destroy his 2005 will, yet he never did. Instead, Dad preserved the will in manner which the court described as “nearby-safekeeping.”

For a case in which an opposite result was reached, take a look at Ewell v. Rucker (Tenn. Ct. App. 1945).  In that case, the court found that a 1927 will which was revoked by a 1938 will and a 1943 will was not revived.  In the Ewell case, there was evidence that the decedent wanted all of his heirs to take his property equally, and the 1927 will would not have achieved that distribution.  The court also found in that case that the decedent had never mentioned the 1927 will after it was executed and that there was otherwise not a “scintilla” of evidence that he intended to revive the 1927 will.

For Tennessee lawyers who handle probate litigation, while a contest which is centered around whether or not a will was revived may be exceedingly rare, it is worth remembering that it is not impossible to prove the revival of a revoked will.

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