Where a will had been in the testator’s possession and cannot be found after his death, there is a rebuttable presumption that the will was destroyed with the intent to revoke. The burden is on the will proponent(s) to overcome the presumption. Where no duplicate originals of the will can be found, a copy can be introduced into evidence to show the intentions of the testator and the contents of the will. Where there is conflicting evidence as to whether the will was revoked, it will be decided by the trier of fact, based on the weight of the evidence.

The fact that a will left in the testator’s possession cannot be found after his death creates a presumption that the will was destroyed by the testator with the intent to revoke the will.[1] When the decedent has destroyed a copy of the will in his possession, a presumption arises that he has revoked his will and all duplicates, even though a duplicate exists outside the decendent’s possession.[2] The presumption of revocation is not an irrebuttable conclusion of law, but rather an inference of fact.[3] The presumption of revocation is rebuttable, and the burden of rebutting the presumption is on the proponent of the will.[4] The general policy behind the law of wills in Alabama is to give effect as nearly as possible to the testator’s intentions expressed in the will; however, “[i]f the presumption of revocation, which arises when a duplicate will left with the testator is not found at his death, is given insurmountable effect, then the purpose for executing duplicate wills would be thwarted.”[5]

In a proceeding to probate an alleged lost will, the burden is on the proponent to establish, to the reasonable satisfaction of the judge or jury trying the facts: “(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 no issue of revocation arising; and (3) the contents of the will in substance and effect.[6]

Where there is a copy of the will (even if unsigned and unwitnessed), it may be introduced into evidence under certain conditions. Where sufficient search for the original will appears to have been made, secondary evidence of the contents of the will (ie: an unsigned copy) may be introduced into evidence, not going to the admissibility of a verified copy, but a fact to be determined by the trier of fact, on consideration of all the circumstances proved.[7] Although there is a rebuttable presumption of revocation where the will is shown to have been in the possession of the testator and is not found at his death, the ascertainment of this fact will cast no light on the authentication of the copy, and is not preliminary to its introduction.[8] In short, in a contested proceeding on petition to probate an alleged lost will, the presumption of destruction of the will does not have to be rebutted before the copy of the lost will can be admitted into evidence.[9]

Where a proponent’s evidence is contradicted by evidence presented by the contestants, the Court cannot find as a matter of law that the proponent has overcome the presumption of revocation raised by the failure to find the testator’s copy of the will.[10] Conflicting testimony concerning the testator’s intent either to change his will or to distribute his estate in a manner inconsistent with the disposition set out under his will creates a question of fact, to be decided by the trier of fact. Id. Evidence presented by the will proponent that the will contestants had access to the house or premises in which the lost will was kept and proponent’s testimony that the testator had several times reaffirmed the existence of the will, is sufficient for a jury to find that the proponent has overcome the presumption of revocation of the will, arising from the fact that the duplicate original known to be in possession of the testator was not found at his death.[11]

[1] See Barksdale v. Pendergrass, 319 So.2d 267 (Ala. 1975); Lovell v. Lovell, 132 So.2d 382 (Ala. 1961).

[2] See Harrison v. Bird, 621 So.2d 972 (Ala. 1993).

[3] See Stiles v. Brown, 380 So.2d 792, 795 (Ala. 1980)(quoting Managle v. Parker, 71 A. 637 (N.H. 1908)).

[4] See Stiles, 380 So.2d at 795.

[5] Id. at 796.

[6] Lovell, 132 So.2d 382 (Ala. 1961)(quoting Jordan v. Ringstaff, 102 So. 895).

[7] Jacques v. Horton, 76 Ala. 238 (1884).

[8] The usual method of authenticating a copy is by the testimony of someone who has compared the copy with the original and found the copy to be correct. If this method is unavailable, other evidence may suffice to authenticate the copy. Where evidence is sufficiently established to show that the document is a copy of the lost will, it is permissible for the copy to be admitted into evidence. See Barksdale, 319 So.2d at 271.

[9] See Barksdale, 319 So.2d 267.

[10] See Kelly v. Donaldson, 456 So.2d 30 (Ala. 1984).

[11] The mere fact that a will contestant had access to the will after the testator’s death is not enough to overcome the presumption of revocation. See Lovell, 132 So.2d 382. But the fact that a contestant had access to the will can raise the inference that perhaps someone other than the testator destroyed the will. See Stiles, 380 So.2d at 796.