Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Tuesday, July 7, 2020

Where’s the Will? Indiana Court of Appeals Reverses Trial Court’s Presumption of Revocation for Lost Will

Legal-wills-revokedRecently, the Indiana Court of Appeals decided the case of Trowbridge v. Estate of Trowbridge. The case involved a man, Everett (E), who remained on good terms with his ex-wife, Christal, despite their divorce. After the divorce, E executed a will in which Christal and Michael Trowbridge (Trowbridge), who was E's brother, were named as co-executors. 

The will left to Christal: (a) the former marital home, which E received according to the dissolution order; (b) the entirety of one retirement account; (c) 25% of another retirement account, and (d) all E's personal property. The will left Trowbridge the other 75% of the second retirement account. 

E died six years after executing the new will. A week after E's death, Trowbridge petitioned to open an intestate estate, asserting that E had no will. Christal then called the estate's attorney, Michael, and told him that she had E's will. According to Christal, she told Michael during a meeting that E gave her his original will in 2012 after he executed it. 

Michael contends that Christal told him that E gave her a copy of his will and left the original in his home's safe. Michael contends that he told Christal he needed to research whether a copy of a will could be used for probate. According to Michael, his research uncovered the rule that where a testator retains possession or control of a will, and the will isn’t found at the testator’s death, a presumption arises that the will was destroyed.

In its analysis, the Court of Appeals first easily affirmed the trial court’s finding that Trowbridge maintained possession of the will. Accordingly, Trowbridge properly received the benefit of the presumption that Everett revoked his will. But this presumption, the Court of Appeals explained, is not the end of the inquiry.

Again, it’s ultimately up to the person contesting the copy of the will to show that it was revoked, and the trial court ignored the evidence supporting Christal’s argument that it was not revoked. In particular, the Court of Appeals noted, among other things, that:

  • Everett didn’t execute his will until after he and Christal were divorced.
  • Everett continued to list Christal as the beneficiary of his accounts as recently as the year before he died.
  • Everett never enforced the dissolution order requiring Christal to deed the former marital property to him.

Accordingly, the Court of Appeals reversed and remanded to the trial court with instructions to consider the evidence rebutting the presumption to determine whether Trowbridge, not Christal, has satisfied his burden of showing that Everett revoked his will.

See Sarah Jenkins & Jason M. Rauch, Where’s the Will? Indiana Court of Appeals Reverses Trial Court’s Presumption of Revocation for Lost Will, Faegre Drinker, June 22, 2020.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.


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