Harrison v. Bird

621 So. 2d 972 (Ala. 1993)

 

RULE:

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 rebuttable 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. The burden of rebutting the presumption is on the proponent of the will.

FACTS:

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.

ISSUE:

Did the deceased effectively revoke her will thereby making her death intestate?

ANSWER:

Yes.

CONCLUSION:

The Court held that 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.

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