No one disagreed that the decedent executed a Last Will and Testament. That said, efforts to locate the document turned out to be fruitless. So, what happened in this case involving a lost will?
The Court of Appeals of Tennessee at Jackson decided In re Estate of Gayle Franklin Cook on May 31, 2019. According to the case background and procedural history, Gayle went to his attorney’s office on April 25, 2012, and executed his will.
Gayle’s brother, John and his daughter, Debra Jenkins both accompanied the decedent to his lawyer’s office. Meanwhile, neither was in the room with Mr. Cook when he signed the will.
After they left the lawyer’s office, John took possession of the original of his brother’s will. It is undisputed that he brought it home with him and placed it somewhere for safekeeping.
Nearly five years later, in February of 2017, Gayle passed away. By the end of the year. Debra filed a petition with the court. She claimed that her Uncle Gayle’s original will was lost and that she did not believe he had ever revoked it. Debra attached a copy of the will to her petition.
According to the legal documents Debra submitted, her uncle had two heirs at law, namely his daughter and granddaughter. Nevertheless, the petition indicated that three different individuals were named as beneficiaries in the will that could not be located.
The lost will purportedly named Debra and her two brothers as beneficiaries to the decedent’s estate. The copy of the lost will affixed to Debra’s petition included language of interest. It said that the late Gayle Franklin Cook was “not unmindful of the fact” that he had “children and grandchildren who are not included as beneficiaries under this Last Will and Testament.”
Court Conducted Trial on Issue of the Lost Will
Initially, the decedent’s heirs attempted to thwart Debra’s efforts by filing a motion with the court requesting dismissal of Debra’s petition. The court denied their motion and probate litigation ensued.
The trial court conducted a trial on the issue of the lost will. Upon conclusion, the judge ruled that that “[the] April 25, 2012 [will] was simply lost and . . . should be accepted for probate.”
The heirs objected to the court’s decision and filed an appeal. They claimed that Debra didn’t prove the will was lost. That said, the law does address what happens when someone claims the existence of a lost will. The proponents of the lost will must establish the following:
- The decedent made and executed a valid will in accordance with law.
- There was no evidence that the decedent ever revoked the will.
- The will did not turn up after a careful search.
- Proof of the contents of the will.
Based on other existing case law, ““[T]he proof necessary to establish a lost or stolen will must be clear, cogent, and convincing.”
Upon reviewing the circumstances in this matter, the Appeals Court determined that the parties only disputed one issue. The daughter and granddaughter disputed whether Debra provided sufficient proof that Gayle never revoked his will.
In affirming the lower court’s decision, the Appeals Court felt that it was “highly probable” that the decedent never revoked his will. According to court testimony, the decedent did not know where his brother stored the will. It was therefore unlikely that he destroyed it.
Based on a consideration of the testimony offered by Debra and her father, the court agreed that the will was simply misplaced. It could therefore be admitted to probate.
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