Oliva-Foster v. Oliva

880 N.E.2d 1223 (2008)

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Nature of the Case

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Facts

Patrick executed a will in 1995 in the office of his attorney, Mario Zappia. The 1995 will named D, his spouse, as the primary beneficiary. He named his daughter Debra, Patrick Jr.'s two children, and Judith's daughter Cheryl (Ps) as contingent beneficiaries. Patrick left his son, Patrick, Jr., out of the 1995 will. Patrick executed a new will on March 13, 2002, again in the office of Attorney Zappia. It named D as the primary beneficiary. This will included Patrick, Jr., as a contingent beneficiary along with Debra and Cheryl. Returning home, Patrick instructed D to tear up his 1995 will. She tore it up in Patrick's presence. Under the 2002 will, Ps would inherit from their father only if D did not survive him. The 2002 will was admitted to probate. Ps filed a will contest on July 23, 2003, in that the 2002 will was improperly executed and invalid; the witnesses did not sign the will in the presence of each other and of the decedent. The attorney recovered an electronic copy of the 1995 will. P and D entered cross-motions for summary judgment. Ps argued the estate should pass by intestate succession. D argued that even if the 2002 will were invalid, the 1995 will would be revived by the doctrine of dependent relative revocation, and the estate would still pass to her. D got the summary judgment, and Ps appealed.