Presumption of Revocation Does Not Apply in Lost Will Case; Copy of Will is Entitled to be Probated

The testator, Harold Becker, executed a Last Will and Testament leaving his estate to his youngest son, Brandon (the child of the Mr. Becker’s second marriage), to the exclusion of his older sons, Scott and Stuart (the children of his first marriage). Mr. Becker’s will appointed his second wife (the couple were divorced but later reconciled) as executor of the will. Brandon had a long-time history of drug abuse and incarcerations, and Mr. Becker’s attorney testified that he left his estate to Brandon because, under the circumstances, Brandon was unable to care for himself financially.

After Mr. Becker died, his second wife sought to probate a copy of the will, claiming that the original could not be located. Mr. Becker’s two older sons filed an answer, asserting that Mr. Becker had destroyed the will because he wanted all of his children to be equal beneficiaries of his estate. They also claimed the will had been the product of undue influence by the second wife, but they later abandoned the undue influence claim.

A bench trial was conducted, during which Mr. Becker’s long-time personal attorney testified that Mr. Becker executed the will in his office, and that he intended to name Brandon as the sole beneficiary of his estate. According to the attorney, he mailed the original will to Mr. Becker. Mr. Becker’s second wife testified that Mr. Becker showed her the will upon receipt from the attorney’s office, and mailed the original will to Brandon in prison. Brandon testified that he received the will and that, because he was being transferred to a new prison facility, Brandon mailed the original will to a childhood friend for safekeeping. According to Brandon, that friend promised to safeguard the will, but later lost contact with Brandon.

In contrast, Mr. Becker’s older son, Scott, testified that his father had told him that he was planning to leave his estate to Brandon, that Scott strongly objected to the plan, and that Mr. Becker later told Scott that the will was gone.

The trial judge concluded that the testator had relinquished his possession of the will by sending it to Brandon, and that therefore the presumption of revocation did not apply. The judge found no basis to conclude that Mr. Becker had destroyed or revoked the will, and admitted the copy of the will to probate.

Mr. Becker’s older son Scott filed a motion for a new trial, claiming that after the judge rendered his decision, Scott’s attorney hired an investigator who discovered information that conflicted with trial testimony. That motion was denied, and Scott appealed.

On appeal, Scott argued that a new trial was warranted because the trial court erroneously failed to apply the presumption of revocation, and that the proponent of the will had failed to overcome that presumption by clear and convincing evidence. Scott’s arguments were rejected by the Appellate Division.

The appellate court noted that, under certain circumstances in which an original will cannot be located, a rebuttable presumption may arise that the testator destroyed the will with the intent to revoke it:

If such a will was last seen in the custody of the testat[or] or [he] had access to it the fact that it cannot be found after [his] death raises the presumption that [he] destroyed it animo revocandi. This presumption may be rebutted [by clear and convincing evidence].

Although the trial court had found that the presumption of revocation did not apply because the father had surrendered his possession and access to the will when he mailed it to Brandon, Scott claimed that his father had access to the will as a result of his prison visits with Brandon, so the presumption of revocation should apply. The appellate court disagreed: although the testator allegedly visited Brandon in prison, there was no indication he could have obtained the will if he so desired.

Scott also claimed that his testimony that his father told him the will was gone proved the father destroyed the will. Rejecting this argument, the appellate court sided with the trial court’s conclusion: the testator’s alleged statement was ‘as likely a comment of appeasement as opposed to an accurate memorialization of destruction of the original will.’

Finally, Scott argued that he should be allowed a new trial based on newly discovered evidence that called into question Brandon and the second wife’s testimony. Scott asserted that he had no reason to anticipate their trial testimony (that Brandon received the will in prison and forwarded it to his friend) prior to trial, because there was no indication of these alleged facts in the complaint. The court rejected this argument: Having made the strategic decision to forego discovery, defendant has no basis for requesting a ‘second bite of the apple’ by virtue of a new trial.

Copy of In re Estate of Becker can be found here In re Estate of Becker

For additional information concerning probate litigation and will contests, visit:http://vanarellilaw.com/will-contests-probate-litigation-elder-abuse-actions/#iplwc
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