Citation. First Interstate Bank v. Henson-Hammer, 98 Ore. App. 189, 779 P.2d 167, 1989)
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Brief Fact Summary.
Decedent’s daughter appeals a judgment admitting a copy of her father’s will to probate. His daughter contends that since the original copy was not found among his personal effects at the time of death that it is presumed to have been destroyed with the intent of revoking it.
Synopsis of Rule of Law.
It is presumed that a missing will was destroyed by the testator with the intention of revoking it, however this presumption can be weakened and overcome by evidence.
Facts.
Decedent died in 1987 leaving an estate of more than $300,000. He had previously prepared a will however the original was not found among his personal belongings after his death. Shortly before his death decedent had reconciled a relationship with his daughter. It was during this time that decedent made his will. One copy of the will was sent to the Bank, one copy was kept by the attorney, and the decedent was given the original and instructed to keep it in a safety-deposit box. Decedent shared a safety-deposit box with his daughter. Decedent’s daughter was the last person to access the safety-deposit box and she had been told by her father to take the papers inside to the Bank after his death. After decedent’s death, daughter removed the contents and claims she found no will. The trial court held that the presumption that the will was revoked was overcome by clear and convincing evidence and the will was admitted to probate. Daughter now appeals.
Issue.
Did the trial court err in holding that there was clear and convincing evidence to overcome the presumption that decedent’s will, not found in his personal effects, had been destroyed with the intent to revoke it?
Held.
No. Affirm. There was enough evidence; including daughter’s access to the will and her ability to benefit by its revocation decedent’s re-affirmation of his estate plan, and the instructions given to his daughter to take his papers to the Bank, to overcome the presumption of revocation.
Discussion.
The strength of the presumption of revocation depends on the control that the decedent have over the place where the will was kept and the fact that others might have had access to it. The Court notes that the quantum of evidence required to overcome the presumption is not clearly established but that the evidence here was enough to weaken and overcome it.
