Jackson v. Jackson
132 Ill. App. 2d 66, 268 N.E.2d 62, 1971 Ill. App. LEXIS 1421 (1971)
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Rule of Law:
The presumption that a testator destroyed a will animo revocandi (with the intent to revoke) when it cannot be found after death is rebuttable. This presumption can be overcome by circumstantial evidence, such as the testator's statements and attitude toward the beneficiary, and the access of adverse parties to the will, particularly when an executed duplicate original exists.
Facts:
- On December 11, 1967, Emma J. Hurley executed three original copies of her last will and testament.
- The will named her niece, Gwendolyn V. Jackson, who had lived with and cared for her for many years, as the sole beneficiary and Executor.
- Hurley kept two of the executed originals and gave the third to her attorney for safekeeping.
- Hurley maintained a continuing good relationship with Gwendolyn Jackson up to the date of her death.
- Shortly before her death, Hurley's half-sister, Tyna Jackson, moved into the second floor of Hurley's home.
- A financial advisor testified that he saw Hurley's will in her cabinet a few days before her death.
- Hurley died on October 14, 1968, and a search of her home hours later failed to locate the two copies of the will she had kept.
- There was no evidence that Hurley ever expressed an intention to revoke her will.
Procedural Posture:
- After Emma J. Hurley's death, Gwendolyn V. Jackson, as proponent, offered the executed triplicate original will for admission to probate.
- Tyna Jackson and Edith Timmons filed a will contest in the trial court against Gwendolyn V. Jackson.
- The case was tried before a jury, which returned a verdict in favor of Gwendolyn V. Jackson, finding the will to be valid.
- The trial court denied the plaintiffs' motions for a directed verdict and for a judgment notwithstanding the verdict (judgment non obstante veredicto).
- The plaintiffs, Tyna Jackson and Edith Timmons, as appellants, appealed the jury's verdict and the trial court's rulings to the intermediate appellate court.
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Issue:
Does sufficient evidence exist to overcome the legal presumption that a testator revoked her will, when two of three executed originals kept by her cannot be located after her death, but the third executed original remains with her attorney, she maintained a good relationship with the sole beneficiary, and adverse parties had access to her home?
Opinions:
Majority - Justice Guild
No. The evidence presented was sufficient to overcome the presumption that Emma J. Hurley revoked her will. The presumption that a missing will has been destroyed by the testator with intent to revoke is not absolute and can be refuted by circumstances that suggest a contrary conclusion. The court identified three key factors to rebut this presumption: 1) statements by the testator indicating no intent to revoke; 2) a continued kind and loving attitude toward the beneficiary; and 3) access to the will by other persons with an adverse interest. In this case, there were no declarations by Hurley of an intent to revoke, she had a continuing good relationship with the beneficiary Gwendolyn Jackson, and adverse parties had access to the two missing copies. Crucially, unlike cases where only an unexecuted copy was presented, here a fully executed and witnessed triplicate original was held by her attorney for safekeeping, which strongly supports the conclusion that the will was not revoked.
Analysis:
This decision clarifies the evidentiary standard for rebutting the presumption of revocation for a lost will in Illinois. It establishes that the presumption, while strong, can be overcome by a combination of circumstantial factors showing the testator's contrary intent. The ruling places significant weight on the existence of a duplicate original executed will held by a neutral third party, like an attorney, treating it as powerful evidence against revocation. This provides a clear framework for future will contests, guiding courts to consider the testator's relationships, statements, and the potential for foul play by interested parties when a will cannot be found.
