Citation. Harrison v. Bird, 621 So. 2d 972, 1993)
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Brief Fact Summary.
A lawyer tore up Daisy Virginia Speer’s will at her request. The beneficiary in her will attempted to probate the will. The Circuit court affirmed the trial court’s decision not to probate the will.
Synopsis of Rule of Law.
If there is evidence that a will was in a testator’s possession before death and not found among her personal effects at death, a rebuttable presumption arises that the testator revoked her will. If a testator destroys her will death, a presumption arises that she revoked the will and all duplicates even though a duplicate may exist with another person. The proponent of the will must rebut the presumption by clear and convincing evidence.
Daisy Virginia Speer executed a will and named Katherine Crapps Harrison as the main beneficiary of her estate. The original will remained with her attorney and a duplicate was given to Harrison. A few years later, Speer called her lawyer and told him that she wanted to revoke her will. Then the lawyer or his secretary, in each other’s presence, tore the will, put the torn pieces in an envelope along with a letter informing Speer that her will had been revoked. Harrison attempted to probate her copy of Speers will but the trial court did not admit it to probate. The Circuit Court affirmed the decision.
Whether a presumption arises that a testator revoked her will if (1) she had possession of the will before death, and (2) the will was not found among her personal effects at her death, even though a duplicate of the will exists.
Yes. A presumption arises that the testator revoked her will if she destroyed it before her death and it was not found among her personal effects at her death. This presumption may only be rebutted by clear and convincing evidence. Furthermore, a presumption arises that she revoked her will and all duplicates even though a duplicate exists that is not in her possession.
A presumption arises that a testator revoked her will even if another person has a duplicate copy of the will, if there is evidence she had it before she died and it is not found among her personal effects at death. Though a person may have left copies of his or her will with other people, the law does not require that the testator insure that each copy is destroyed in order to revoke a will. The law only requires evidence that the testator revoked the will itself.