A Missing Will Is Presumed Destroyed By The Decedent With Intent To Revoke It

Edna M. Fone, a widow, had two children, Richard J. Fone, Jr. and Katherine Fone. Following Edna’s death, Richard sought to probate a 2009 Will allegedly signed by Edna which omitted Katherine as a beneficiary. In response, Katherine filed a lawsuit, seeking to invalidate the purported Will, alleging Richard had exerted undue influence over their mother and that Edna did not have the capacity to execute the 2009 Will. After the trial, the chancery judge ruled in favor of Katherine, invalidating the 2009 Will. Richard appealed from that judgment, but the appeal was dismissed.

While his appeal was pending, Richard filed another lawsuit. In the second lawsuit, Richard sought to probate a copy of Edna’s alleged 1997 Will as the original document could not be found. Richard alleged that, after his father died, he searched for his parents’ 1997 Wills in a specific location in their bedroom, but was unable to locate them. He claimed that his parents had disinherited Katherine in those Wills and she must have taken the documents from their home. Katherine denied both knowing anything about her parents’ Wills and removing them from their house.

Katherine moved to dismiss the second complaint, and the chancery judge granted Katherine’s motion, dismissing Richard’s complaint. The trial court found that Richard was unable to rebut the presumption that the 1997 Will had been revoked or destroyed.

Richard appealed, asserting that the chancery judge should have permitted him to present evidence at trial to rebut the presumption that the 1997 original Will was revoked.

The appeals court affirmed the trial court’s decision in favor of Katherine. The appeals court ruled as follows:

A will that cannot be found after the testatrix’s death is presumed to be destroyed with the intent to revoke ‘[i]f such a will was last seen in the custody of the testatrix or she had access to it.’ This presumption of revocation may be rebutted only with ‘clear, satisfactory and convincing’ evidence. The proof necessary to rebut the presumption… ‘must be sufficient to exclude every possibility of a destruction of the will by the testatrix herself.’ [Citations Omitted]

Finally, the court ruled that “Richard has not provided any credible evidence that excludes every possibility of a destruction of the will by the testatrix herself. As a result, he has not met the heavy burden of providing the clear and convincing evidence necessary to overcome the presumption that the 1997 Will was destroyed.’

The case is annexed here – Estate of Edna M. Fone

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