The Oklahoma Bar Journal November 2024

certainly relevant to the issue of the will’s existence. 48 The evidence needed to prove by clear and convincing evidence that a lost will was “in existence” at the testator’s death depends on the facts of the case. Many attor neys focus solely on finding direct evidence of the will’s physical exis tence. While such evidence, when available, is often the most straight forward way to satisfy the burden of proof, circumstantial evidence can be just as effective to rebut the presumption of revocation. CONCLUSION Courts rarely explain why, of the three plausible explanations for a missing will, the law presumes intentional revocation in every case. When they do, the answer usually echoes the same notes. “A will is universally recognized as a sacred document,” 49 and there is “a logical inference that a per son of ordinary prudence would keep safe an original document as important as a will.” 50 Accordingly, if the original “be not found in the repositories of the testator, ... the common sense of the matter, prima facie, is that he himself destroyed it, meaning to revoke it.” 51 However, there are clients who lose important legal papers, use them as grocery lists or otherwise treat them as something less than “sacred documents.” In an age where some documents never exist in physical form, many people assume that a copy is just as effec tive as the original. That assumption is not unreasonable, considering the presumption of revocation has been largely reversed for nonprobate transfers. 52 Yet, as in many things, wills law is slow to adapt. In light of these changing norms and expec tations, is it still rational to presume

care of personal effects; whether the testator, during their lifetime, made any dispositions of prop erty that contradict the terms of the lost will; whether the testator understood the consequences of not having a will and the effects of intestacy; and whether the terms of the lost will are reasonable. 42 One of the most famous English cases on lost wills, Sugden v. Lord St. Leonards , involved the will of Edward Burtenshaw Sugden, a renowned British lawyer and former lord chancellor of Great Britain. 43 In determining whether the probate court had properly ruled that the will remained in existence at Mr. Sugden’s death, the Court of Appeals noted that “it would be difficult to find anyone who had a deeper sense of the importance of testamentary dis positions [than Mr. Sugden].” 44 The chief justice remarked, “It seems to me utterly impossible to suppose that, under these circumstances, such a man as [Mr. Sugden] would voluntarily have destroyed this will, whether for the purpose of revoking it, or making another, or for any other purpose that could be conceived.” 45 A more difficult question is what consideration, if any, should be given to evidence that some one other than the testator had an opportunity to destroy the will (where fraudulent destruction is not actually proven). On the one hand, fraud is never presumed, 46 so the fact that “persons injuri ously affected by the will had opportunities to destroy it” is not, standing alone, sufficient to rebut the presumption that it was revoked by the testator. 47 On the other hand, the possibility that the will may have been destroyed by someone other than the testator is

that a lost will was revoked? Is it acceptable to ignore the expressed testamentary intent of a decedent even when there is no direct evi dence of revocation? For now, it is up to attorneys to vindicate the wishes of those who can no longer speak for themselves. And when a will is lost, that means knowing how to prove, to the satis faction of the law, that the will was “in existence” therefore should be given effect.

ABOUT THE AUTHOR

David M. Postic is a shareholder at Postic & Bates PC in Oklahoma City, practicing primarily in the areas of estate

planning, probate and trust administration. He serves as an adjunct professor, teaching wills and trusts at the OU College of Law. He can be contacted at posticd@posticbates.com. 1. See 58 O.S. §82. 2. In re Estate of Shaw , 1977 OK 237, ¶18, 572 P.2d 229 (“[F]ailure to produce or find a will known to have been in the possession of the testator or readily accessible thereto prior to his death, raises a presumption of revocation of such instrument.”). 3. 58 O.S. §82. See also Day v. Williams , 1938 OK 554, ¶35, 85 P.2d 306 (stating that “clearly and distinctly proved” is equivalent to the “clear and convincing” evidentiary standard). 4. The short answer to this last question is “no.” While a photocopy of a signed will can be admitted into evidence, 58 O.S. §82, the statutory requirement of proving its terms by two witnesses is “mandatory and may not be disregarded.” Janzen v. Claybrook , 1966 OK 200, ¶23, 420 P.2d 531. Admitting a copy is primarily useful for establishing that the lost will was properly executed or for resolving a dispute over the exact terms of the will. 5. See Day v. Williams , 1938 OK 554, 85 P.2d 306; Johnson v. Bruner , 1950 OK 139, 219 P.2d 211; Nickell v. Nickell , 1952 OK 446, 251 P.2d 787; Janzen v. Claybrook , 1966 OK 200, 420 P.2d 531; Estate of Malloy v. Gillentine , 1975 OK CIV APP 11, 529 P.2d 1400; In re Estate of Robb , 1978 OK CIV APP 31, 581 P.2d 1327; In re Estate of Wilson , 1994 OK CIV APP 31, 875 P.2d 1154; and In re Estate of Goodwin , 2000 OK CIV APP 147, 18 P.3d 373. I have not included In re Estate of Shaw , 1977 OK 237, 572 P.2d 229 (a case involving duplicate ENDNOTES

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

NOVEMBER 2024 | 11

THE OKLAHOMA BAR JOURNAL