Harrison v. Bird
621 So. 2d 972 (1993)
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Rule of Law:
When a will is last known to be in the testator's possession but cannot be found after death, a rebuttable presumption arises that the testator destroyed the will with the intent to revoke it. If the testator destroys their copy of a will executed in duplicate, the law presumes the testator has revoked all copies.
Facts:
- In November 1989, Daisy Virginia Speer executed a will naming Katherine Crapps Harrison as the main beneficiary.
- Speer's attorney retained the original will, and Harrison was given a duplicate original.
- On March 4, 1991, Speer telephoned her attorney and instructed him to revoke her will.
- The attorney, not in Speer's presence, tore the original will into four pieces.
- The attorney mailed the torn pieces to Speer with a letter confirming he had 'revoked' the will and stating, 'As it now stands, you are without a will.'
- Speer died on September 3, 1991.
- After her death, the attorney's letter was found among Speer's personal effects, but the torn pieces of the will were not.
Procedural Posture:
- After Speer's death, the Probate Court of Montgomery County granted letters of administration to Mae S. Bird, Speer's cousin, to administer an intestate estate.
- Katherine Crapps Harrison then filed a petition to probate a duplicate original of Speer's will.
- On Bird's petition, the case was removed to the Circuit Court of Montgomery County.
- Bird contested the will, arguing it had been revoked.
- Both parties moved for summary judgment, which the circuit court denied, finding that while the attorney's destruction of the will was invalid, a presumption of revocation arose because the pieces were sent to Speer and not found after her death.
- After reviewing evidence and testimony, the circuit court held that Harrison had failed to rebut the presumption of revocation and ruled that the estate should be administered as intestate.
- Harrison, the will's proponent, appealed the circuit court's judgment to the Supreme Court of Alabama.
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Issue:
Does a rebuttable presumption of revocation arise when the pieces of a will, last known to be in the testator's possession, cannot be found after her death, thus shifting the burden to the will's proponent to prove it was not revoked?
Opinions:
Majority - Justice Houston
Yes. A presumption of revocation arises when a will last known to be in the testator's possession cannot be found after death, and the burden shifts to the proponent to rebut this presumption. The court reasoned that established precedent creates a presumption of revocation when a testator possesses their will before death but the will is not found among their personal effects afterward. This presumption extends to duplicate wills; if the testator destroys their copy, all duplicates are presumed revoked. The burden then shifts to the will's proponent, Ms. Harrison, to present sufficient evidence to rebut the presumption. The court rejected Harrison's argument that the presumption should not apply because the will was already invalidly destroyed by her attorney, finding that the key element is that the pieces were in Speer's possession and subsequently disappeared. The court concluded that Harrison failed to present sufficient evidence to rebut the presumption that Speer destroyed the will pieces with the intent to revoke.
Analysis:
This decision reaffirms the strong common law presumption of revocation for lost wills in probate law. It clarifies that the presumption applies even under unusual circumstances, such as when the will was already physically damaged by a third party during an invalid revocation attempt. The ruling underscores that the testator's final possession and the subsequent absence of the document are the critical factors, not the document's physical state when it entered the testator's possession. This case solidifies the high evidentiary hurdle that a proponent of a lost will must overcome to prove that the testator did not intend to revoke it.
