The Oklahoma Bar Journal November 2024

modifiers “clearly” and “distinctly” implies a lower standard of proof than that imposed where those modifiers appear. 15 Likewise, only the terms of the will (its substantive provisions) must be proved “by at least two credible witnesses.” 16 There is no such requirement for proving the will’s due execution (except in the case of a will contest 17 ) or its continued existence at the time of the testator’s death, 18 which must simply be “proved.” Despite the relative clarity of the statute in this regard, courts over the years have interpreted the law as requiring the lost will’s due exe cution, its existence at the testator’s death or its fraudulent destruction, and its terms to all be “clearly and distinctly proved by two witnesses.” This confusion seems to stem from the 1938 Oklahoma Supreme Court case of Day v. Williams . 19 In interpret ing the requirements of Section 82, the court stated: Where a copy of a purported lost holographic will is offered for probate, the execution of the will exclusively in the handwriting of the testator, the existence of the will at the testa tor’s death, and the provisions of the will must all be clearly and distinctly proven by at least two credible witnesses. 20 There is no provision in [Section 82] that requires proof by two witnesses of the execution of a lost will or of its existence at the time of the death of testator. Sufficient testimony to convince the court of the fact is all that is required . ... The requirement of the proof of at least two credible Later in the same opinion, how ever, the court held:

absence: The testator destroyed it with the intent to revoke; the will was accidentally destroyed or lost; or the will was wrong fully destroyed or suppressed by someone dissatisfied with its terms. Of these plausible expla nations, the law presumes that the testator destroyed the will with intent to revoke it. 13 All three explanations for a lost will are plausible, and any of them could be true in a given case. Yet the law always presumes inten tional revocation, provided the will was last known to be in the testa tor’s possession. The requirements of Section 82 apply even if the will was last known to be in the pos session of someone other than the testator. However, the fact that it was not in the testator’s possession can support a finding that the will was “fraudulently destroyed.” Having determined that Section 82 requires a lost will to have a legal, but not necessarily a physical, existence, there remains the more difficult question of how to prove that existence. The burden to do so falls on the proponent of the will. 14 To succeed in that endeavor, it is crucial to know not only the quan tum of evidence required by statute but also the type of evidence that is probative of the issue. evidentiary burden for proving a lost will’s existence than for proving its terms. The plain language of the statute expresses that the terms of a lost will must be “clearly and distinctly proved” but its existence merely “proved.” The absence of the HOW TO PROVE A WILL’S EXISTENCE Evidentiary Burden Section 82 imposes a different

was duly executed and not been revoked prior to the testator’s death, it remains ipso facto in exis tence. But consider the dilemma inherent in the probate lost wills: Without a physical document, how is a court to decide whether the will was revoked? Although a will must have a physical existence to be created, 8 the mere ending of its physical form is not sufficient to revoke it. A will is revoked by destruction or other physical act only if the act is performed on the instrument “with [the] intent and for the purpose of revoking the same.” 9 If a will can be destroyed but not revoked for lack of revo catory intent, then its continued “existence” under the law is not contingent on the document’s preservation. The legal existence of a will is distinct from its phys ical existence. 10 Accordingly, to prove that a lost will “existed,” the proponent needs to show only that the will had a legal existence at the time of the testator’s death – that the testator had not revoked it. 11 But this does not resolve the dilemma. The court is still left with the task of determining whether the will was, in fact, revoked. And without the deceased testator available to say if they did, in fact, destroy the will and, if so, whether they did so with the intention to revoke it, making that determina tion with any degree of certainty can be nearly impossible. The law resolved this problem through the doctrine of presumed revocation. 12 As with many other legal pre sumptions, the doctrine is rooted in practicality: If a will is traced to the testator’s possession and cannot be found after death, there are three plausible explanations for its

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.

8 | NOVEMBER 2024

THE OKLAHOMA BAR JOURNAL