Revocation, Revival, and Dependent Relative Revocation
Key Takeaways
- A will may be revoked by a subsequent instrument (express or by inconsistency) or by a physical act — burning, tearing, canceling, obliterating, or destroying — done by the testator or by another in the testator's presence and at the testator's direction, with intent to revoke (§6120).
- Partial revocation by physical act is permitted in California: a testator may cancel a single gift by lining it out, and the canceled property typically falls to the residue or passes by intestacy — but a physical act cannot be used to increase a gift.
- A lost or destroyed will may still be probated under §8223/§6124 by clear and convincing proof of contents (often a copy), but §6124 presumes a will last in the testator's possession and not found at death was revoked by the testator.
- California has NO automatic revival: §6123 provides that a revoked first will is revived only if it is evident from the circumstances of the second will's revocation or from the testator's contemporaneous/subsequent declarations that the testator intended the first will to take effect.
- Dependent relative revocation (DRR) disregards a revocation that was premised on a mistaken belief — usually that a new disposition would be effective — when the testator would have preferred the revoked will to intestacy; it revives the canceled gift only if its terms come closer to the testator's true intent.
Probate Code §6120 supplies two methods of revocation, and a third (operation of law) appears elsewhere. The first method is revocation by a subsequent will or other writing executed with testamentary formalities. A later instrument may revoke an earlier one expressly — by a clause stating 'I revoke all prior wills and codicils' — or impliedly, by making dispositions wholly inconsistent with the earlier will.
Where a later instrument only partially contradicts the earlier one, the two are read together as the testator's will, and the later document revokes the first only to the extent of the inconsistency; the second instrument is then treated as a codicil that supersedes conflicting provisions while leaving compatible gifts intact. The second method is revocation by physical act: burning, tearing, canceling, obliterating, or destroying the will, with the simultaneous intent to revoke it. Both components are essential — the physical act and the present intent to revoke must coincide.
An accidental tearing, or destruction by someone other than the testator without direction, does not revoke. The act may be performed by another person, but only if done in the testator's presence and at the testator's direction; a will torn up by a relative outside the testator's presence is not revoked even if the testator later approves. 'Canceling' includes drawing lines through text or writing 'void' or 'revoked' across the face of the instrument, and California does not require the cancellation marks to physically touch the words of the dispositive provisions, though touching is the safest.
Where the original of an executed will cannot be found after the testator's death and the will was last known to be in the testator's possession, §6124 raises a presumption that the testator destroyed it with intent to revoke.
California permits partial revocation by physical act, a point that distinguishes it from jurisdictions that allow physical-act revocation only of the entire will. A testator may strike out a single legacy — lining through 'I give $10,000 to my cousin' — and that gift alone is revoked while the rest of the will stands. The property subject to the canceled gift does not pass to the persons whose gifts would be enlarged by the cancellation; rather it falls into the residue, or, if the canceled gift was itself part of the residue, passes by intestacy, unless another instrument directs otherwise.
A crucial limitation is that a physical act can only revoke (reduce or eliminate) a gift; it cannot be used to increase a gift or create a new disposition. If a testator crosses out '$5,000' and writes in '$15,000' above it, the interlineation is an unexecuted (and thus ineffective) attempt to make a new gift, and the cancellation of the original $5,000 may be disregarded under dependent relative revocation to give the cousin the original $5,000 — closer to intent than zero. Where a will is executed in duplicate originals, revocation of one duplicate by physical act with intent to revoke revokes all duplicates, because each is the will.
By contrast, destruction of an unexecuted photocopy is not a physical-act revocation of the executed original. Finally, a lost or destroyed will is not automatically void: under §8223 a will may be admitted to probate by clear and convincing evidence of its terms (a conformed copy, the drafting attorney's file, or witness testimony), but the proponent must overcome the §6124 presumption of revocation where the original was last in the testator's hands and cannot be located.
When a testator executes Will #1, then executes Will #2 that revokes Will #1, and then revokes Will #2, the question is whether Will #1 springs back to life. California answers this with §6123, which deliberately rejects automatic revival. The statute distinguishes by the manner in which the second will was revoked.
Subsection (a): if a second will that wholly revoked a first will is itself thereafter revoked by a physical act, the first will remains revoked unless it is evident from the circumstances of the revocation of the second will, or from the testator's contemporaneous or subsequent declarations, that the testator intended the first will to take effect as executed. In other words, revival turns on proof of the testator's intent; there is no presumption either way that the first will revives.
Subsection (b): if the second will only partially revoked the first and is then revoked by physical act, the revoked part of the first will is revived unless it is evident from the circumstances or the testator's declarations that the testator did NOT intend the revived provisions to take effect — a milder presumption favoring revival for partial revocations. Subsection (c): if the second will is revoked by a THIRD will, the first will is revived only to the extent the third will shows such an intent.
The doctrinal payoff is to read every revival problem through the lens of demonstrated intent, looking to the surrounding circumstances and to the testator's oral or written declarations (which §6123 makes admissible). An examinee should never assume that destroying Will #2 automatically restores Will #1; absent evidence of revival intent, the testator dies intestate, or under whatever earlier will is shown to have been intended to operate.
Dependent relative revocation is an equitable doctrine that cancels an otherwise-effective revocation when the revocation was conditioned on a mistaken assumption that proves false, and the testator would have preferred the now-revoked gift to the alternative that the failed revocation produces (usually intestacy). DRR operates as a 'second-best' rule: the court ignores the revocation and probates the revoked provision because doing so comes closer to the testator's true intent than letting the revocation stand. The typical pattern involves a mistake of law or fact about the validity or effect of a substitute disposition.
Suppose a testator's will gives $10,000 to a charity; the testator crosses out '$10,000' and writes '$15,000,' intending to increase the gift. The interlineation is ineffective because it is an unexecuted change, and the cancellation, standing alone, would reduce the charity to nothing. DRR steps in: because the testator canceled the $10,000 only because she mistakenly believed the $15,000 substitution would take effect, the court disregards the cancellation and restores the original $10,000 — the result closest to intent.
The doctrine's two essential conditions are (1) a revocation induced by a mistaken belief (frequently the belief that a new will or new gift is valid), and (2) a finding that, had the testator known the truth, she would have preferred the revoked disposition to the default outcome. DRR will NOT apply if reviving the canceled gift would not be closer to intent — for example, where the testator clearly wanted the beneficiary to receive nothing rather than the original amount, or where intestacy actually better matches the proven intent.
DRR is most powerful when a testator revokes Will #1 in the mistaken belief that Will #2 is valid; if Will #2 fails (improper execution, undue influence), DRR can disregard the revocation of Will #1 and probate it, provided Will #1's terms are nearer the testator's intent than intestacy.
Revocation, Revival, and DRR at a Glance
| Scenario | Governing rule | Default outcome |
|---|---|---|
| Later will inconsistent with earlier | §6120 — implied revocation pro tanto | Read together; later controls conflicts |
| Testator strikes one gift | Partial revocation by act | Gift to residue or intestacy |
| Crosses out amount and writes larger one | Ineffective interlineation + DRR | Original amount restored if nearer intent |
| Will #2 (full revoke) destroyed | §6123(a) — no auto revival | Will #1 revived only if intent shown |
| Will #2 (partial revoke) destroyed | §6123(b) | Revoked part revived unless contrary intent |
| Original lost, last with testator | §6124 presumption | Presumed revoked unless rebutted |
A testator's will gives $20,000 to her nephew. She crosses out '$20,000' and writes '$30,000' above it, signing nothing. She dies. What is the most likely result under California law?
Testator executes Will #2, which expressly revokes Will #1 in its entirety. Later, Testator tears up Will #2 with intent to revoke it. No evidence shows what Testator intended about Will #1. Under §6123, what happens?