\ IN THE SUPREMF: COURT OF THE STATE OF MONTANA 

No. 14221 nr - 

IN THE 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 is made nunc pro tunc to correctly 

reflect what was decided by the Court on that date in this 

opinion. 

DATED this day of February, 1979. 

Justices 
No. 14221 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1978 

IN THE ImTI!m OF THE ESTATE OF 

ELLA D. PA=, Deceased. 

Appeal frm: District Court of the Ninth Judicial District, 

Honorable H. William Coder, Judge presiding. 

Counsel of Record: 

For Appellant: 

Church, Harris, Johnson and Williams, Great Falls, Wntana 

R. Keith Strong argued, Great Falls, Wntana 

For Respondent : 

Alexander, Kuenning, Miller and Uqrin, Great Falls, Wntana 

Edward Alexander argued, Great Falls, Wntana 

Suhitted: November 17, 1978 

Decided: 3EC 2- 1$E 

Filed: 2 i. -, ~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. Patten v. 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 to probate 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 1968 will, Robert Patten was named 

executor of the estate. In the 1970 will, this appointment was 

deleted. The 1970 will omits some specific bequests which were 

in the 1968 will. 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 the 
basis of this discovery, Robert Patten moved the court for 

summary judgment on the grounds that the copy of the 1968 will 

was not entitled to probate. Following a hearing on this 

motion, the District Court, on January 4, 1978, entered an order 

and judgment granting Robert Patten's motion. Donald Patten 

appeals from this order and judgment. 

On appeal, appellant raises these issues: 

1. Does Montana 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 1968 will 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 this manner: 

"Under what has been termed the doctrine of 

'dependent relative revocation,' if a testator, 

having made a will and desiring to make a new one, 

cancels the first will preparatory to making the 

second and thereafter fails lawfully to execute 

the same or make 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 dependent upon making of a new one as 

a substitute for the old one. If the cancelation 

of the old will and the making of the new one were 
were parts of one scheme, and the revocation 

of the old will was so related to the making 

of the new as to be dependent upon it, then if 

the new will be not made, 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 legal manner." Thompson on 

Wills 8168, p. 262. 

The doctrine is applied with caution. The mere fact that 

a testator made a new will, 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 new will. 95 C.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 doctrine may 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 

the validity of the new will. 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, 105 N.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. In Hall, the court stated that to prove this 

intent the proponents of the revoked will must show that the 

new will was executed concurrently with 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 1968 will, has not proven that decedent intended 

the destruction of the 1968 will to depend upon the validity of 

the 1970 will. 

The original of the 1968 will 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 

(19771, Mont . , 563 P.2d 569, 33 St.Rep. 285; In re Estate 

of Una M. Newman (1974), 164 Mont. 15, 518 P.2d 800; In re Colbert's 

Estate (1904), 31 Mont. 461, 78 P. 971. This presumption that 

decedent destroyed the 1968 will with the intent to revoke it 

must apply in this case. No one knows when 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 reveal decedent's revocation 

of the 1968 will was not conditioned on the validity of the 1970 

will. In the 1968 will, decedent bequeathed $5,000 and $2,500 

to her grandchildren, the son and daughter of Robert Patten. In 

the 1970 will, Donald Patten's name was written in by pen and ink 

as executor. In the 1968 will, Robert Patten was the named 
executor. These differences in the wills show that decedent 

may not have intended the same dispositive plan. 

Here, the evidence that decedent intended the revocation 

of the 1968 will to depend upon the validity of the 1970 will 

is merely 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, 110 N.E.2d 194. In Moo's Estate, the original will 

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 the will 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 1968 will depended upon the validity of the 1970 will. 

The doctrine of dependent relative revocation has 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 issues would not affect the outcome of this appeal. 

Judgment affirmed. 

Chief Justice 
, --- LALzL- LJ- - -- 

Justices