The Oklahoma Bar Journal November 2024

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

on the ground of the failure to prove these two facts by at least two credible witnesses. 26 In other words, the Day court did not affirm the trial court ruling because the will’s existence was not “clearly and distinctly proved” by two witnesses. It affirmed because it did not see any legal error com mitted by the trial court based on the record before it. Nevertheless, Oklahoma courts have consistently cited Day for the proposition that the “evidence needed to establish the existence … of the will which is not produced must be clear and convincing .” 27 “The evidence concerning both the existence and the contents of the will must be clear and convincing .” 28 “In Day v. Williams , this court held that the existence of the will alleged to have been lost, must be clearly and convincingly proved to have been in existence.” 29 Prevailing case law, therefore, places Oklahoma in the majority of states that require clear and convincing evidence to rebut the presumption that a lost will was revoked. 30

law, the Day court went on to apply the more relaxed standard. It found that “the testimony was sufficient to establish the fact that [the tes tator] had prepared” a valid will. 23 It also found that “the testimony was sufficient to further show” that the instrument alleged to have been the testator’s lost will (a copy of which was produced) was in existence when the testator died.” 24 Although the court ultimately affirmed the denial of probate, it did so because the evidence not “suffi cient” to show that the testator’s will and the copy produced to the court were one and the same. 25 The court observed that there was: nothing in the judgment of the [trial] court to indicate what particular feature, if any, of the evidence required was held insufficient. That being true, error cannot be based upon the charge that the court required a greater and higher degree of proof as to the execution of the will and the existence of the will at the time of the death of the tes tator than is required by law, nor that the demurrer was sustained

witnesses applies only to the provisions of the lost will, which must be clearly and distinctly proven. 21 In both of these passages, the court addressed the evidentiary standard for proving the facts required by Section 82 to pro bate a lost will. But the rule it set forth in the first passage appears to conflict with the rule in the second. The first passage states in no uncertain terms that the will’s execution, existence and terms “must all be clearly and distinctly proven” by at least two witnesses. Yet the second passage asserts in equally definitive language that the requirement of proof by two witnesses “applies only to the provisions of the lost will” and that “[s]ufficient testimony” of the will’s execution and existence sat isfies the evidentiary burden. This more relaxed standard squares with the well-settled proposition that the proponent of a will must establish its due execution by a preponderance of the evidence. 22 Notwithstanding these osten sibly divergent statements of the

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.

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THE OKLAHOMA BAR JOURNAL