The testator executed six wills in five years. The last three wills divided the residuary estate among three persons found to have exerted undue influence over the testator in the execution of her final will. The trial court held that the undue influence meant that the residuary clause was invalid and that the estate would therefore pass in intestacy. The third will was the latest will to give any portion of the residuary to a beneficiary who was not found to have exerted undue influence. This beneficiary urged the trial court on remand to admit that will to probate based on DRR. In In re Estate of Murphy, No. 2D14–4107, 2015 WL 6777216 (Dist. Ct. App. Fla. Nov. 6, 2015), the intermediate Florida appellate court reversed and ordered the third will admitted to probate, holding that the application of DRR requires only a “broad similarity” between the invalidated instrument and an instrument it revoked, that any admissible extrinsic evidence may be used in determining the extent of similarity, and that once the presumption of no revocation of the prior instrument arises, the burden of proving revocation falls on the opponent of the use of DRR.
Special thanks to William LaPiana (Professor of Law, New York Law School) for bringing this case to my attention.
