621 So. 2d 972
SYNOPSIS: Appellant will proponent sought review of a judgment of the Circuit Court of Montgomery County (Alabama), which held that the decedent's estate was to have been administered as an intestate estate and which confirmed the letters of administration granted by the probate court to appellee administratrix.
-The deceased executed a will in which she named the will proponent as the main beneficiary and executor.
-The decedent's attorney retained the original will and the will proponent had a copy.
-Prior to her death, the decedent called her attorney and advised him that she wanted to revoke her will.
-The attorney, in the presence of a witness, tore the will into four pieces.
-The attorney wrote the decedent a letter informing the decedent that he had revoked the will and that he was enclosing the pieces of the will.
-Following her death, the probate court named the administratrix to administer the estate.
-The will proponent filed a document purporting to the decedent's will.
-The case was removed to the circuit court where the will was adjudged revoked and the administratrix was confirmed to administer the estate.
-The court affirmed the judgment and held that, while the attorney did not lawfully revoke the will when he destroyed the will without the presence of the decedent, a rebuttable presumption that the decedent had revoked her will arose upon the failure to find the will among the decedent's possessions, which the will proponent failed to overcome.
-If the evidence establishes that the decedent had possession of the will before her death, but the will is not found among her personal effects after her death, a presumption arises that she destroyed the will.
-Furthermore, if she destroys the copy of the will in her possession, a presumption arises that she has revoked her will and all duplicates, even though a duplicate exists that is not in her possession. -However, this presumption of revocation is rebuttable and the burden of rebutting the presumption is on the proponent of the will.
OUTCOME: The court affirmed the circuit court's finding that the decedent had died intestate and that the administratrix was the proper person to have administered the decedent's estate.
Harrison v. Bird (Ala. 1993) [34 CB 253]: Decedent executed a will, but then asked attorney to physically destroy it. Attorney tears it up and mails pieces to decedent. Decedent dies, and copy of will is put up for probate. Rule: Evidence establishes that decedent had her will before death and fact that it wasn’t found creates presumption that she destroyed will. Proponent bears burden of showing that the absence of the will is not from testator’s destruction thereof.
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