Efforts to Change Will Using Photocopy and Then Downloaded Form Are Ineffective

In a case that serves as a cautionary reminder to clients thinking of changing their estate plan on their own, a Minnesota appeals court rules that a testator’s alleged attempts to revoke her original will by first marking up a photocopy of it and later trying to make a new will using an online form were invalid, and the original will stands.  In re the Estate of Sullivan (Minn. Ct. App., No. A14– 2112,Aug. 17, 2015).

Esther Sullivan validly executed a will on January 19, 2006, that devised 50 percent of her property to a former employee of Ms. Sullivan’s, Tara Jean Johnson, and a contingent share to Ms. Sullivan’s grandson, Joseph VanHale.  On October 11, 2008, Ms. Sullivan allegedly made handwritten changes to a photocopy of the 2006 will, writing her initials next to each alteration and signing and dating the bottom of each page. She allegedly wrote on top of the 2008 photocopy, “[t]he Will dated January 19, 2006 is void and to be replace[d] with this and all written in changes.” Among the changes was that Ms. Johnson was replaced by Mr. VanHale as a 50 percent beneficiary. On October 30, 2010, Ms. Sullivan allegedly attempted to execute another will using a downloaded form and filling in the provisions by hand. This document named Mr. VanHale as Ms. Sullivan’s sole beneficiary. 

Following Ms. Sullivan's death in 2013, Mr. VanHale contended that the 2010 document was a valid will, while Ms. Johnson argued for the 2006 will. The district court held that the 2008 photocopy and 2010 document were invalid because they did not comply with will formalities. The court held that Ms. Sullivan arguably intended to revoke the 2006 will, but did not successfully “revoke with a properly executed document.” The district court applied the doctrine of dependent-relative revocation because of Ms. Sullivan’s intent to revoke the 2006 will, and admitted it into probate. Mr. VanHale appealed, arguing that Ms. Sullivan clearly intended to revoke the 2006 will and that the 2010 document was valid.

The Court of Appeals of Minnesota admits the 2006 will to probate but on somewhat different grounds. The court finds that the district court did not err by finding that Ms. Sullivan’s alleged attempt to revoke the 2006 will was ineffective and that the 2010 document was not validly executed.  However, the court rules that a revocatory act must be performed on a properly executed will, not a photocopy.  Because Ms. Sullivan never revoked the 2006 will, the court holds that the district court erroneously applied dependent relative revocation to revive it.

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