Ward-Allen v. Gaskins
2010 D.C. App. LEXIS 79, 989 A.2d 185 (2010)
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Rule of Law:
The revocation of a codicil does not revive the provisions of a prior will that the codicil had explicitly revoked; revival requires a formal re-execution or a new codicil showing such intent. When an original codicil last known to be in the testator's possession cannot be found, it is presumed revoked, but this presumption is rebuttable by evidence showing the testator did not destroy it with revocatory intent.
Facts:
- On August 13, 1992, Anna Creech executed a will leaving her china closet to her nephew, Cleveland Mitchell, and the residue of her estate to all of her nieces and nephews.
- The 1992 will also nominated Mitchell as the personal representative and a niece, Lettie Gaskins, as the alternate.
- On August 11, 1995, Creech executed a codicil that explicitly revoked the aforementioned items from her 1992 will.
- The 1995 codicil bequeathed the china closet to Special T. Allen, devised her home to Bettye Ward Garner and Bobbie Jean Ward-Alien, and named Ward-Alien as the alternate personal representative.
- Bettye Ward Garner, Bobbie Jean Ward-Alien, and Special T. Allen had lived with and cared for Anna Creech for approximately two decades.
- Anna Creech died on December 15, 2001.
- After Creech's death, the original 1995 codicil could not be located, although a copy existed.
- Bobbie Jean Ward-Alien testified that she sent the original codicil to Cleveland Mitchell, but it was unclear whether this occurred before or after Creech's death.
Procedural Posture:
- Bobbie Jean Ward-Alien filed a petition for standard probate in the Superior Court of the District of Columbia, seeking to admit Anna Creech's 1992 will and a copy of the 1995 codicil.
- Two of Creech's nieces, Lettie Gaskins and Jessie Marie Davis, filed objections to the admission of the copy of the 1995 codicil.
- The trial judge sustained the objections, finding there was too much uncertainty regarding the original codicil, and refused to probate the copy.
- The trial court then denied Ward-Alien's petition and admitted the 1992 will to probate in its entirety.
- Ward-Alien, as the appellant, appealed the trial court's decision to the District of Columbia Court of Appeals, with Gaskins as the appellee.
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Issue:
Does the presumed revocation of a codicil, due to the original not being found after the testator's death, operate to revive the provisions of a prior will that the codicil had explicitly revoked?
Opinions:
Majority - Fisher, Associate Judge
No, the presumed revocation of a codicil does not revive the portions of a will that the codicil previously revoked. Under D.C. Code § 18-109(b), an anti-revival statute, a will or codicil, once revoked, may not be revived other than by its re-execution or by a new codicil showing an intention to revive it. The 1995 codicil, upon its proper execution, immediately revoked the specified items of the 1992 will. Even if the codicil was later revoked by destruction, that act does not, by itself, reinstate the revoked parts of the original will. The trial court therefore erred by admitting the 1992 will in its entirety. Furthermore, the court explained that while a missing codicil last in the testator's custody is presumed revoked, this presumption is rebuttable. The case must be remanded because the trial court failed to make a crucial factual finding as to whether the original codicil was in the testator's possession at the time of her death. If the proponent of the codicil, Ward-Alien, had possession of the original after Creech's death, then Creech could not have destroyed it, and the presumption of revocation would be rebutted.
Analysis:
This decision reinforces the strict application of anti-revival statutes in the District of Columbia, making it clear that revoking a revoking instrument does not automatically restore the original testamentary provisions. It underscores that any revival must be an intentional, formally executed act. The case also highlights the critical role of factual determinations regarding a will's custody in applying the presumption of revocation for lost instruments. The outcome serves as a strong reminder that failing to secure original testamentary documents can create significant legal ambiguity, potentially leading to partial intestacy and frustrating the testator's known intentions.
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