Kroll v. Nehmer

WILNER, Judge. Margaret Binco died on December 19, 1994, leaving four wills—one dated July 24, 1980, a second dated April 12, 1985, a third dated June 28, 1990, and a fourth dated October 27, 1994. We are concerned here only with the second will—the 1985 will. The 1980 will, it appears, had been altered, and, although it was at one time offered for probate, no one now contends that ⁶¹⁸ it has any validity.

When Ms. Binco drew the 1990 will, she wrote on the back of her 1985 will “VOID—NEW WILL DRAWN UP 6-28-90.” 1 The 1990 and 1994 wills, all parties agree, are ineffective because they lack the signatures of attesting witnesses, as required by Maryland Code, Estates and Trusts Article, § 4-102. Accordingly, if the 1985 will was effectively revoked by Ms. Binco, she would have died intestate, in which event appellant, her brother and closest surviving relative, who was not named as a beneficiary under the 1985, 1990, or 1994 wills, would inherit. The dispute now before us is therefore between appellant, urging that the 1985 will had been revoked, and appellee, the person who offered that will for probate and who was appointed as personal representative to administer the estate under the will, who contends that the 1985 will had not been effectively revoked. Over appellant’s objection, the Orphans’ Court for Baltimore County, apparently applying the doctrine of dependent relative revocation, admitted the 1985 will to probate, notwithstanding its apparent revocation by Ms. Binco.

The Circuit Court for Baltimore County affirmed that decision. We granted certiorari on our own initiative before any proceedings in the Court of Special Appeals to consider whether the lower courts erred in applying the doctrine and finding the 1985 will to be valid. We believe that they did err and shall therefore reverse. Dependent Relative Revocation Section 4-105 of the Estates and Trusts Article permits a will to be revoked by “cancelling ... the same, by the testator himself____” It is clear, and neither party now suggests ⁶¹⁹ otherwise, that, by writing on the 1985 will “VOID—NEW WILL DRAWN UP 6-28-90” and retaining the will, so marked, among her papers, Ms. Binco intended to revoke that will and that, unless saved by the doctrine of dependent relative revocation, that will was effectively revoked.

As we indicated in Arrowsmith v. Mercantile-Safe Deposit, 313 Md. 334, 343 , 545 A.2d 674, 679 (1988), no reported Maryland appellate decision has ever applied that doctrine. The doctrine, in its most general form, is described in 2 William J. Bowe & Douglas H. Parker, Page on the Law of Wills § 21.57 at 446 (rev. ed.1960): “In general the doctrine of dependent relative revocation applies to invalidate the revocation of a will where it is shown that the revocation was conditioned on the occurrence of certain facts which never came to pass or upon the existence or nonexistence of circumstances which were either absent or present contrary to the condition.” As most commentators, including the revisors of Page’s opus, point out, in applying the doctrine, courts often speak in terms of a conditional revocation, regarding the revocation as conditioned on the existence of a set of facts or circumstances that the testator assumes to exist, when, in reality, the revocation is itself unconditional but is rather based on a mistaken frame of mind—a mistake of either fact or law. They give as an example of a mistake of fact the circumstance in which a testator physically destroys his will believing that the document he is destroying is not his will but some other instrument. In that circumstance, they suggest, the necessary intention to revoke the will is clearly lacking, and a “mistake of this sort prevents revocation, although all the other elements are present.” Id. at 448.

There is no need in that situation to construe the revocation as a “conditional” one— the presumed condition being that the document being destroyed is not the testator’s will—for a mistake of that kind suffices on its own to justify granting relief. The more troublesome branch of the doctrine is where the mistake is not in the act of revocation itself but in the ⁶²⁰ inducement for the act, arising from facts or circumstances extrinsic to the instrument revoked. This often takes the form of a mistake of law or of legal consequences. The most common instance of this form is “where a testator revokes a later will in the belief that he can thus put a prior will into effect, or where he revokes a prior instrument thinking that a later instrument has been executed in due form and that no other facts exist which will prevent such instrument from operating as a later will.” Id. at 448.

See also Joseph Warren, Dependent Relative Revocation, 33 Harv. L.Rev. 337, 342 (1920). It is possible, of course, for a testator to make clear that his revocation of an existing will is conditioned on the legal validity or effectiveness of some other instrument, but, as the Page authors note, in most instances the testator has simply assumed that state of affairs and has articulated no such condition. In such cases, the revocation is really less of a conditional one than one based on a mistake of law which, if regarded in that manner, would not normally suffice to avoid an otherwise deliberate act.

Some courts, in an effort to effectuate what they presume would have been the testator’s intent had he known the true circumstances, have thus constructed the fiction of a conditional, or dependent relative, revocation, as a more plausible theory upon which to provide relief. See George E. Palmer, Dependent Relative Revocation and its Relation to Relief for Mistake, 69 Mich. L.Rev. 989-90 (1970-71): “The one part of the law of wills in which courts often do give relief for mistake is in connection with revocation by holding that an apparent revocation was ineffective because of mistake in underlying assumptions. Rarely, if ever, however, does a modern court rest its decision squarely on its power to relieve for mistake.

Instead, the testator’s intent to revoke is regarded as conditioned upon the truth of the matter in question; since the condition has not been met the conclusion is reached that there was no revocation for lack of the requisite intent. This is the doctrine of dependent relative revocation. It rests upon an analysis that, ⁶²¹ with few exceptions, is found nowhere else in the law relating to mistake in underlying assumptions.” (Emphasis added.) This theory, almost peculiar to revocations of wills, gained initial currency in English decisions. Joseph Warren, Dependent Relative Revocation, supra, 33 Harv.

L.Rev. at 337. As Page, and increasingly many courts, have warned, however, the testator’s true intentions in a mistake of law-implied condition context are often ambiguous—harder to discern "with real clarity and authority—and, before applying legal fictions based on undocumented presumptions to accept as valid a will that has otherwise been facially revoked in accordance with all legal prerequisites, courts need to examine the circumstances with great care and caution. 2 We shall turn now to those circumstances, as they appear in this case. The Four Wills and the Proceedings Below When Ms. Binco died, her only heir was her brother, Henry J. Kroll, the appellant. Mr. Kroll was not mentioned as a beneficiary in any of the three later wills; the 1980 will is not in the record before us, but, from a comment made during the hearing in the circuit court, it appears that he was left a car in that will.

The 1985 will was drawn by an attorney and made a complete disposition of Ms. Binco’s estate. She left her jewelry, furs, and furniture to five individuals—Charmaine Kilmartin, Esther Strebech, Betty Ball, Joan Romanowski, and Phyllis Butler; a credit union account was left to a sixth ⁶²² individual; AT & T stock was bequeathed equally to two charities—First Church of God and Lutheran Social Services of Maryland; and Standard Oil Company stock was left to Spay and Neuter All Pets, Inc. St. John’s Lutheran Church, the First Church of God, and Spay and Neuter All Pets, Inc. shared equally in the residuary bequest. Ms. Romanowski was named as personal representative. The 1990 will, which was handwritten and contained a number of margin notes and interlineations, had no residuary clause, so it is not clear whether that will made a complete disposition of Ms. Binco’s estate.

None of the individuals mentioned in the 1985 will were included in the 1990 will. Some of the beneficiaries are referred to only by their first names—Ms. Binco’s house and certain stock, for example, is left to “Richard and Sharyn”; clothing is left to “Chris”; mink stoles are left to “Bea” and “Pat.” Other bequests suggest that “Richard” is Richard Kroll, appellant’s son and Ms. Binco’s nephew. In a Notice of Hearing sent later by the Register of Wills, “Sharyn” is identified as Sharyn L. Trent, but it is not clear from the record what, if any, relationship she has with Richard Kroll or with Ms. Binco. 3 Pat Sonneborn, Bea Reynolds—possibly the “Pat” and “Bea” named as legatees—along with a “Hank,” who might be appellant, are listed as executors. The First Church of God is mentioned in the will, but it is not at all clear what, if any, bequest is made to that charity.

One or more of the interlineations appear to have been made after the initial will was written. A provision stating “Pay Norman Lauenstein—Atty,” for example, is crossed out, and, in the margin is written “Paid Him.” The 1994 will is also a handwritten document, containing no residuary clause. At the top, Ms. Binco declares it as her Last Will and Testament and states that she “would like to designate the following items to those mentioned below.” Her ⁶²³ car, which in the 1990 will went to Richard Kroll, was given to Pat Sonneborn. Her house, which was formerly to go to Sharyn and Richard, was left to Beate Reynolds.

With the exception of a bedroom set and table that were left to Pat Sonneborn, the furniture in the house was left to Ms. Reynolds as well. A credit union account was left to Ms. Sonne-born and a Rosedale Federal account was left to Ms. Reynolds. Certain stock was bequeathed 50% to Richard Kroll, 25% to Ms. Sonneborn, and 25% to Ms. Reynolds. One thousand dollars of insurance was left to the First Church of God, and another $1,000 was left to Friends of Animals.

Ms. Sonneborn and Richard Kroll were designated as executors. Neither the 1990 will nor the 1994 will make any reference to any earlier will, and, as noted, neither contains the signatures of any attesting witnesses, although the 1990 will has a place designated for witnesses. Unfortunately, the record of proceedings in the orphans’ court transmitted to this Court does not constitute the complete file and is somewhat difficult to follow, although we can piece together essentially what occurred from what we have and from what the parties assert in their briefs. At some point after Ms. Binco’s death, Richard Kroll presented the 1990 will for judicial probate.

Subsequently, appellee presented the 1980 will for judicial probate. At a hearing held on March 14, 1995, appellant produced the 1985 will which, over his objection, was admitted to probate. Appellee, identified as the Pastor of St. Johns’s Lutheran Church, was appointed as personal representative. Appellant then filed a caveat to the will contending, among other things, that Ms. Binco did not have sufficient mental capacity to make that will, that the contents of the will had not been read or explained to her, that the will was procured by fraud and undue influence, and that it had, in any event, been subsequently revoked.

In an amended petition and caveat, he asked that those issues be tried in the circuit court. On August 9, 1995, the orphans’ court dismissed appellant’s amended petition and caveat, without assigning any reasons. In that same order, the court formally rejected the 1990 will on the ground that “it does not ⁶²⁴ satisfy the statutory requirement of a valid will and is not in good form.” Appellant noted an appeal to the circuit court but in that court effectively abandoned any complaint with respect to Ms. Binco’s testamentary capacity or to any fraud or undue influence. The sole question presented to the circuit court was whether the orphans’ court erred in applying the doctrine of dependent relative revocation and admitting the 1985 will to probate, notwithstanding its apparent revocation.

After a brief evidentiary hearing, the court entered an order affirming the admission of the 1985 will to probate. The basis of its ruling was that “the revocation of the April 12, 1985 Will was so related to the making of the June 28, 1990 Will as to be dependent on it. Therefore, since the June 28, 1990 Will was invalid, the April 12, 1985 Will, whose contents can be ascertained, should be given effect.” Application of Dependent Relative Revocation At issue here is the branch of the dependent relative revocation doctrine that, in effect, disregards conduct otherwise qualifying as a revocation of a will when that conduct, in the court’s view, was based on an assumption by the testator that the will being revoked would be immediately replaced by a valid new will. It is the “mistake of law” branch of the doctrine.

Two overlapping and confluent assumptions underlie the theory. One was expressed in a 1929 Annotation, A.G.S., Effect of Testator’s Attempted Physical Alteration of Will After Execution, 62 A.L.R. 1367 , 1401 (1929): “It is based upon the presumption that the testator performed the act of revocation with a view and for the purpose of making some other disposition of his property in place of that which was canceled, and that there is, therefore, no reason to suppose that he would have made the change if he had been aware that it would have been wholly futile, but that his wishes with regard to his property, as expressed in his original will, would have remained unchanged, in the absence of any known and sufficient reason for changing them.” ⁶²⁵ See also the 1952 update of that Annotation, L.S. Tellier, Effect of Testator’s Attempted Physical Alteration of Will After Execution, 24 A.L.R.2d 514 , 554 (1952). A second, or perhaps simply a different articulation of the same, theory offered in support of the doctrine comes into play when, as is often the case, the effect of not disregarding the revocation is for the decedent’s estate, or some part of it, to pass intestate. See In re Macomber’s Will, 274 A.D. 724 , 87 N.Y.S.2d 308, 312 (1949): “The rule seeks to avoid intestacy where a will has once been duly executed and the acts of the testator in relation to its revocation seem conditional or equivocal.” See also Goriczynski v. Poston, 248 Va. 271 , 448 S.E.2d 423, 425 (1994).

The law disfavors intestacies and requires that, whenever reasonably possible, wills be construed to avoid that result. Crawford v. Crawford, 266 Md. 711, 719 , 296 A.2d 388, 392 (1972). Courts have made it clear, however, that the law’s preference for a testate disposition is always subordinate to the intention of the testator, whether ascertained or presumed. See Charleston Library Soc. v. Citizens & Southern Nat.

B., 200 S.C. 96 , 20 S.E.2d 623, 632 (1942). Although, as noted, this Court has never applied the doctrine, we have discussed aspects of it in three cases. In Semmes v. Semmes, 7 H. & J. 388 (Md.1826), the testator had a will leaving his entire estate to his wife, in trust for herself and his infant son until the child reached 21, at which point one-half of the personal property was to go to her absolutely. When his wife predeceased him, the testator used a pen to obliterate his signature and those of the attesting witnesses and to write on the bottom of the will,