Probate, trust, guardianship and inheritance litigation
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Alabama Supreme Court Rejects Probate of Lost Will

Beneficiaries of lost wills can attempt to probate a lost will if the requirements of state law are met.  In January of 2020, the Alabama Supreme Court amplified the rules for probating a lost will in Alabama.

In Taylor v. Hoehn, No. 1180375, 2020 Ala. LEXIS 10 (Jan. 17, 2020), the Decedent, Mr. Hoehn, was married to Margaret.  They had four daughters, one of which, Helene, attempted to probate a lost or missing will in Alabama probate court.  Helene attempted to probate an unsigned will, claiming that the original, signed will, was missing.

The drafting attorney, Attorney Moore, testified as follows:

  • He had prepared the unsigned copy of the will.
  • He did not remember the Decedent actually signing the will.
  • He did not remember any witnesses or a notary signing the will.
  • He normally keeps signed copies of wills he prepares for clients, but did not have a signed copy of the will in question.
  • Although another of the Decedent’s daughters, Roman, testified that she was present in the room when the will was executed, Attorney Moore testified that it was his practice for many years to exclude children from a will execution ceremony.

The daughter, Roman, testified as follows:

  • She was present when the will was signed, but did not testify that any witnesses also signed the will contemporaneously.
  • The signed will and the signed will of her mother, Margaret, were kept “on top of a file cabinet in an office the family shared for many years…[and] …when she remodeled the office, the wills were taken to her parents’ house and placed on a dining-room table that Margaret used as a desk.”
  • The unsigned copy of the will was identical to the will that she claimed her father signed.

What are the Requirements in Alabama to Probate a Lost or Missing Will?

Alabama case law sets forth the elements necessary to probate a lost or destroyed will in Alabama.  As explained by the Court, the necessary elements are (citations omitted):

  1. The existence of a will — an instrument in writing, signed by the testator or some person in his presence, and by his direction, and attested by at least two witnesses, who must subscribe their names thereto in the presence of the testator.
  2. The loss or destruction of the instrument.
  3. The nonrevocation of the instrument by the testator.
  4. The contents of the will in substance and effect.

In rejecting the probate of the missing will, the Alabama Supreme Court explained as follows:

Roman testified that she was present at attorney Deven Moore’s office and that she saw Hoehn sign the will that Helene sought to have admitted to probate. Moore testified that the will he prepared was self-proving. However, Roman did not testify, or present any other evidence to establish, that Hoehn signed the will in the presence of two witnesses and a notary public, that two witnesses also signed the will, and that a notary public notarized those signatures. Further, Moore could not support Roman’s testimony because he did not recall the execution of the will and because he did not have an executed copy of the will in his office files. Finally, the circuit court found that Roman was not credible as to the issue whether Hoehn signed the will. Therefore, the circuit court could have reasonably concluded that Helene did not establish that Hoehn ever properly executed the purportedly lost will.

Can You Revoke a Lost Will?

Attorney Moore also testified that he had received a letter from the Decedent which stated “I have revoked my prior power of attorney, as well as any other writing I have made which purports to gift any real property, business interest, cash, or anything of value to either [Roman] or [Helene].”

The Court rejected the attempt to bootstrap a finding that the revocation letter established that the will had been signed and not revoked (citations omitted):

The Supreme Court discussed the presumed fact that a will has been revoked only when a signed copy exists.  The fact that the will left in the testator’s possession cannot be found after his death creates a presumption that the will was destroyed by the testator animo revocandi, or with intent to revoke. The presumption referred to is not an irrebuttable conclusion of law; it is a mere inference of fact. Our cases clearly hold that this presumption of revocation or inference of fact is rebuttable and the burden of rebutting the presumption is on the proponent of the will.

The Court relied on the revocation letter to amplify its decision to reject the probate of the allegedly lost will in Alabama.

Moreover, there was also evidence from which the circuit court could have reasonably concluded that, even if [the Decedent] had signed the will, that will had been revoked. Although Roman testified that the signed will had been kept in the family office and later on the dining-room table in [the Decedent’s] and Margaret’s house, that will could not be located after [the Decedent] died. Also, there was evidence indicating that [the Decedent] sent letters or notices to both Roman and Moore stating that he had revoked the power of attorney he had given to Roman and that he was revoking any other writings that had reflected an intent on his part to give her money or property. Therefore, the circuit court could have reasonably concluded that Helene did not rebut the presumption that, if [the Decedent] had signed the will, he later revoked it.