The Restatement (Third) Property (Wills and Donative Transfers) §4.1 provides that “if a will cannot be located after death, but the trier of fact finds that it was not revoked, the will is entitled to probate if its due execution and contents can be proved. Commonly in such cases, the will is proved by evidence from a law-office or other copy, or from the drafter’s notes and recollection. If its full contents cannot be proved, the will is entitled to probate to the extent that its contents can be proved.”
Similarly, Florida has adopted its own code provisions regarding the practice and procedure for admitting the lost or destroyed will to probate. See Florida Probate Rule 5.510. However, there are some jurisdictions that have not adopted a code provision regarding the procedure for use when a will cannot be located after the decedent’s death.
A recent opinion issued by the North Dakota Supreme Court highlights the problems faced in states that have not adopted legislation detailing the probate practice and procedure to be employed when facing the issue of whether a will has been properly revoked when it cannot be located after death.
The Court In re Estate of Conely, 753 N.W.2d 384 (N.D.2008) faced the following fact scenario: Harry Wayne Conley died unmarried and with no children. He was survived by his brother, Clayton Conley, and his sisters, Margaret York and Merle McKinney. His parents and one brother, Wesley Conley, predeceased him. Wesley Conley was survived by two sons, Albert Conley and Colin Conley.
Harry Wayne Conley executed a will on January 19, 1982. Harry Wayne Conley’s original 1982 will could not be found at the time of and after his death, but a conformed copy was obtained from the files of the lawyer who prepared it. Under the provisions of this missing will, Harry Wayne Conley’s sister, Margaret York, would receive his entire estate. If Harry Wayne Conley’s estate passed under the laws of intestacy, rather than the terms of his last known will, Harry Wayne Conley’s estate would pass to and be shared among his brother, Clayton Conley, his two sisters, Margaret York and Merle McKinney, and Albert Conley and Colin Conley, the children of Harry Wayne Conley’s deceased brother, Wesley Conley.
Four years after Harry Wayne Conley’s death, Harry Wayne Conley’s nephews, Albert Conley and Colin Conley initiated the probate of Harry Wayne Conley’s estate. Later, Margaret York filed a Petition to Establish the Will Testacy and Right of Succession to the Estate Assets, and she requested that a conformed copy of Harry Wayne Conley’s 1982 will be admitted into probate. The dispute over whether the Will had been revoked because the original could not be located was contested in probate proceedings and the case eventually worked its way through the court system.
The North Dakota Supreme Court looked to the common law doctrine of amino revocandi, which is a legal presumption is founded upon the observation that “[p]ersons, in general, keep their wills in places of safety, or, as we here technically express it, among their papers of moment and concern. They are instruments in their nature revocable: the testamentary intention is ambulatory till death; and if the instrument is not found in the repositories of the test[at]or, where he had placed it, the common sense of the matter, prima facie, is that he himself destroyed it, meaning to revoke it. The presumption intends to protect the testator’s right to change his will at pleasure and recognizes that wills are almost always destroyed secretly. Consequently, when a will cannot be found upon the death of the testator, the presumption arises that the testator secretly chose to revoke the missing will. The fact that a conformed copy of the missing will is in the office of the attorney who drafted it does not alter the rationale for the presumption.
Thus, this particular court applied the provisions governing presumptions in civil cases generally and determined that for the lost will to be admitted to probate, the presumption must be rebutted by the preponderance of the evidence.
North Dakota and similar states would do well to adopt a scheme similar to Florida’s. Our state’s probate code has a built-in procedure for proving the content of a lost and destroyed will: it must be proved by at least two disinterested witnesses, or if a copy is provided, it can be proved by one disinterested person. Fla.Stat. §733.207.