Brief Fact Summary. Ottilie L. Alburn executed two wills in her lifetime and destroyed the second will. Neither of the wills made any provisions to certain next-of-kin. Alburn’s niece, a beneficiary under her first will filed for probate and Alburn’s heirs at law appealed the decision.
Synopsis of Rule of Law. Where the testator expresses an intent on reinstating a former will and there is no explanatory evidence, the testator will be deemed to have revoked his later will under the mistaken belief that he was reinstating his first will.
We therefore hold that, notwithstanding an appeal from that part of a divorce judgment relating to alimony or division of property, the right is reserved to the trial court to vacate or modify the judgment so far as it affects the status of the parties.View Full Point of Law
Issue. Whether there a testator intends to reinstate his first will by revoking the second will if , (1) she makes a statement to another that he wants his first will to stand, and (2) she takes no steps following the destruction of the second will to make a new will, (3) there is no evidence disproving the facts showing intent on reviving the first will.
Held. Yes. The evidence is sufficient to support a finding that a testator wants her first will to stand after revoking the second will where she (1) told her sister-in-law that she wanted her first will to stand , (2) took no steps to make another will after revoking the second will, and (3) there was no evidence negating the facts showing she intended to revive her first will. Furthermore, there was no evidence that any acts occurred subsequent to the revocation of the second will that suggested that the testator wanted to die intestate.
Discussion. The Court will hold that a testator desired her first will to stand even where she revoked it by making another will, if the testator revokes the later document and there is no evidence showing that she wanted to die intestate
There was no evidence showing that she wanted to die intestate because she knew her first will was with her lawyer, there was no change in cirucumstances after she destroyed her second will suggesting she wanted her heirs at law to receive her estate. The testator intends for her first will to stand in conjunction with the fact that she did not create another will.