Matter of Estate of Ausley , 62 O.B.A.J. 3101 ( 1991 )

SUMMERS, Justice,

concurring in part and dissenting in part.

The Court correctly expounds the applicable law on revocation of wills and the related doctrine of dependant relative revocation. I dissent only from the majority’s refusal to apply the latter doctrine to the facts before us. The beneficiaries in the old, cancelled will were the same beneficiaries as in the draft of the new, intended will. Only the percentages these beneficiaries were to receive were changed. Some seven heirs at law, all of whom will prosper from the majority’s treatment, were left out of both Mr. Ausley’s testamentary efforts.

The doctrine of dependant relative revocation, as described by the majority in its quote from Thompson on Wills, § 168 (3rd ed. 1947), certainly seems applicable. It is said there that when the testator “cancels the first will preparatory to making” a new one, and thereafter fails to lawfully execute the new one, then “it will be presumed that he preferred the old will to an intestacy, and the old is not revoked.” Id. at 262. (emphasis mine). The evidence, though partly circumstantial, appears indisputable that the testator’s acts cancelling and marking “VOID” the old will were in anticipation of making a new one. The presumption, then, is that given the choice he would have preferred the cancelled will to intestate succession. Is there evidence to overcome the presumption? I find none. Instead, the evidence is that the same five beneficiaries are carried forward from the old will into the new will, to the continued exclusion of the seven other heirs at law. This evidence strongly indicates to me that the testator would have preferred the can-celled will over no will at all and intestate succession. The majority concludes otherwise.

Our court having recognized the existence of the doctrine of dependant relative revocation in Phillips v. Smith, 186 Okl. 636, 100 P.2d 249 (1939), I would rule it applicable in this case, find that the trial court’s holding was against the clear weight of the evidence, and order the old will admitted to probate.

I am authorized to state that Justice KAUGER joins in these views.