\ INTHE SUPREMF: COURT OF THE STATE OF MONTANA

No. 14221 nr -
INTHE MATTER OF THE ESTATE OF ELLA D. PATTEN, Deceased. - L.

ORDER

PER CURIAM: The above opinion, decided December 27, 1978 is amended: On page 6, line 6 from the top of the page, the name "Donald" should be changed to "Robert L.". This amendment ismade nunc pro tunc to correctly reflect what was decided by the Court on that date inthis opinion.DATED this day of February, 1979.

JusticesNo. 14221 INTHE SUPREMECOURTOF THE STATEOF MONTANA 1978

INTHE

### ImTI!m OF THEESTATEOF ELLAD. PA=, Deceased.

Appeal frm: DistrictCourt of theNinthJudicial District, HonorableH. WilliamCoder, Judgepresiding. Counsel of Record: ForAppellant: Church,Harris, JohnsonandWilliams, GreatFalls,Wntana R. Keith Strongargued,GreatFalls,Wntana For Respondent: Alexander,Kuenning,Miller andUqrin,Great Falls,Wntana EdwardAlexander argued,Great Falls,Wntana

Suhitted: November 17, 1978 Decided: 

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# ~d$Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. This is an appeal from the granting of summary judgment by the District Court,Pondera County,denying admission to probate of a copy of the purported Last Will and Testament of Ella D. Patten,deceased. Ella D. Patten died September 14, 1973. Her heirs are her two sons: Donald Patten,proponent and appellant, and Robert Patten, contestant and respondent. The parties to this proceeding were previously before this Court litigating the validity of another alleged will of Ella D. Patten. Pattenv. Patten (1976), 171Mont. 399, 558 P.2d 659, 33 St.Rep. 1328. We held then that an alleged will of the deceased, made in 1970,could not be admitted toprobate because it was not properly executed. The copy of the will before us now was executed on November 25, 1968. The validity of the execution of this will is not in dispute. When the will was executed, the original was given to Ella D. Patten and a copy was retained by the attorneys who drew the will. At decedent's death, the original could not be found. The copy was presented for probate. Both wills left the bulk of decedent's estate, approximately $200,000, to Donald Patten. There are some differences between the wills. In the 1968will, Robert Pattenwas named executor of the estate. In the 1970will, this appointmentwas deleted. The 1970 will omits some specific bequests which were in the 1968will. The remaining paragraphs in the wills are almost identical in language and in form. After our decision in Patten v. Patten, supra,Robert Patten petitioned the District Court for a determination that decedent died intestate. In response to this petition, Donald Patten requested the court to admit a copy of the 1968 will to probate. Discovery then was commenced by both sides. On thebasis of this discovery,Robert Pattenmoved the court for summary judgment on the grounds that the copy of the 1968will

was not entitled to probate. Following a hearing on this motion, the DistrictCourt, on January 4, 1978, entered an order and judgment granting Robert Patten'smotion. Donald Patten appeals from this order and judgment. On appeal, appellant raises these issues: 1. DoesMontana law recognize the doctrine of dependent relative revocation,and, if so, is it applicable in this case? 2. Does the Montana Uniform Probate Code, Sections 91A1-101, et seq., R.C.M. 1947,apply in this case where the decedent died prior to the effective date of the Code? 3. When the doctrine of dependent relative revocation is applied,what is the procedure and proof necessary to allow probate of a lost or destroyed will? The principal issue in this appeal is the District Court's refusal to apply the doctrine of dependent relative revocation and admit the copy of the 1968will to probate. This is a case of first impression in Montana. We have not previously determined if the doctrine of dependent relative revocation is a part of Montana law. The doctrine has never been applied in this jurisdiction. The doctrine of dependent relative revocation comes from the common law. The doctrine has been outlined in thismanner: "Under what has been termed the doctrine of 'dependentrelative revocation,' if a testator, having made a will and desiring to make a new one, cancels the first will preparatory tomaking the second and thereafter fails lawfully to execute the same ormake therein an invalid disposition of his property, it will be presumed that he preferred the old will to an intestacy,and the old will is not revoked. The doctrine is said to be one of presumed intention, it being presumed that cancelation or destruction of the old will was intended to be dependentupon making of a new one as a substitute for the old one. If the cancelation of the old will and themaking of the new one werewere parts of one scheme, and the revocation of the old will was so related to themaking of the new as to be dependent upon it, then if the new will be notmade, or if made is invalid for any reason, the old kill, though canceled, should be given effect, if its contents can be ascertained in any legalmanner." Thompson on Wills 8168,p. 262. The doctrine is applied with caution. Themere fact that a testator made a newwill,which failed of effect,will not of itself prevent the destruction of an earlier will from operating

as a revocation. The doctrine can only apply where there is a clear intent of the testator that the revocation of the old is conditional upon the validity of the newwill. 95C.J.S. Wills 5267,p. 37. For the doctrine to apply, the new will must also not have changed the testamentary purpose of the old will and essentially repeated the same dispositive plans such that it is clear that the first will is revoked only because the second duplicated its purpose. 95 C.J.S. Wills 8267,p. 37. Thus, while the doctrinemay be widely recognized, it is narrowly applied. We hold that the doctrine of dependent relative revocation

can be applied under Montana law. We have found no statutes or court decisions either prior to or subsequent to the enactment of the Montana Uniform Probate Code precluding the application of this doctrine in this jurisdiction. However,while holding that the doctrine can be applied under our law, we decline to apply the doctrine in this case. In deciding whether to apply the doctrine in a given case, the testator's "intent"is the controlling factor. The testator must intend that the destruction of the old will is dependent upon thevalidity of the newwill. Thompson on Wills, supra. Evidence of this intent cannot be left to speculation, supposition, conjecture or possibility. The condition that revocation of a will is based upon the validity of the new will must be proved by substantial evidence of probative value. Roberts v. Fisher (1952), 230 Ind. 667, 105N.E.2d 595. A showing of immediate intent to

-4-make a new will and of conditional destruction are required to re-establish a destroyed will under the theory of dependent relative revocation. In re Estate of Hall (1972), 7 Wash.App. 341, 499 P.2d 912. InHall, the court stated that to prove this intent the proponents of the revoked will must show that the new will was executed concurrentlywith or shortly after the destruction of the old will and both wills must be similar in content. In the present case,Donald Patten, the proponent of the copy of the 1968will,has not proven that decedent intended the destruction of the 1968will to depend upon the validity of the 1970will. The original of the 1968will was given to Ella D. Patten after it was executed. At her death, it could not be found. Under Montana law,a will, last seen in the possession of a testator,which cannot be found after a careful and exhaustive search following death is presumed to have been destroyed by the testator with the intent of revoking it. Matter of Estate of Hartman Mont

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## , 563 P.2d 569, 33 St.Rep. 285; In re Estate of Una M. Newman (1974), 164Mont. 15, 518 P.2d 800; In re Colbert's Estate (1904), 31Mont. 461, 78 P. 971. This presumption that decedent destroyed the 1968will with the intent to revoke it must apply in this case. No one knowswhen the decedent destroyed her will or how she did it. The record does not show that the 1970 will was executed concurrently or shortly after the destruction of the 1968 will. While the content of both wills is similar in some respects, the dissimilarities are such that they revealdecedent's revocation of the 1968will was not conditioned on the validity of the 1970 will. In the 1968will, decedent bequeathed $5,000 and $2,500 to her grandchildren,the son and daughter of Robert Patten. In the 1970will, Donald Patten'sname was written in by pen and ink

as executor. In the 1968will, Robert Patten was the namedexecutor. These differences in thewills show that decedent may not have intended the same dispositiveplan. Here, the evidence thatdecedent intended the revocation of the 1968will to depend upon thevalidity of the 1970will ismerely conjecture and speculation. As that is the case, the District Court was correct in granting summary judgment to Doned Patten. The doctrine of dependent relative revocation can only be applied where the evidence of the testator's intent is clear and convincing. Such is not the case here. In a similar factual situation, the Illinois Supreme Court refused to apply the doctrine. In re Moo's Estate (19531, 414 Ill. 54, 110N.E.2d 194. InMoo's Estate, the originalwill of the decedent could not be found after his death and the presumption of revocation arose. There, like here, a copy of the will alleged to have been lost was presented to the court for probate. Admission of the copy of thewill to probate was denied. The court holding that,where the evidence was insufficient to overcome the presumption of revocation, the doctrine of dependent relative revocation had no application in absence of evidence that the revocation of the old will depended upon the efficacy of the new will. Here, we have no evidence that the revocation of the 1968will depended upon the validity of the 1970will. The doctrine of dependent relative revocationhas no application under these circumstances. Having held that the doctrine of dependent relative revocation should not be applied in this case, we can find no merit in discussing the other issues raised in this appeal. Determination of those issueswould not affect the outcome of this appeal. Judgment affirmed.

Chief Justice, 

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