Mary Lou Golini appeals the circuit courts affirmance of a probate court order admitting a copy of

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Mary Lou Golini appeals the circuit court’s affirmance of a probate court order admitting a copy of Willie Mae Arant’s last will to formal probate and appointing Melvin R. Bolton personal representative under the will. Because we find evidence which reasonably supports the factual findings of the probate court, we affirm.

Willie Mae Arant executed her Last Will and Testament on August 5, 1992. Arant executed her will, which had been drafted by an attorney, in her home with two witnesses present. The original will could not be found after Arant’s death, so a copy of the will was filed in Calhoun County Probate Court. The probate court issued an order of informal probate and appointed Melvin R. Bolton personal representative under the will. The will left the bulk of the estate to Bolton, Arant’s nephew, and Kent Sutcliffe, Arant’s grandson. Mary Lou Golini, Arant’s only surviving daughter, filed suit challenging the probate of the will on the ground that because the original will could not be found, it had been destroyed animo revocandi (with the intent to revoke).

The probate court found Arant’s will had not been revoked because it was returned to her attorney’s office after it was executed and it was lost some time after that. Furthermore, the probate court found Arant thought she had the original in her possession, but did not. The probate court found that Arant always indicated where her will was located and copies of her will were found in those locations after her death. The probate court admitted the will to formal probate and appointed and qualified Bolton as personal representative of Arant’s estate.

Golini appealed to circuit court. The circuit court affirmed the probate court and stated the preponderance of evidence showed Arant was not in possession of her will after its execution. The circuit court based this conclusion on the fact that before the factual presumption of animo revocandi arises in a lost will situation, it must be proven the testator had possession of the will.

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 All parties agree Arant properly executed her will. The dispute arises over what happened to the original will after its execution. Golini claims the evidence proves Arant was the last person to have possession of her will because the will was executed in Arant’s home and the witnesses to the will testified they left the will with Arant after it was executed. Bolton claims, and the lower courts agreed, the evidence tended to show the last verifiable location of the will was in Arant’s attorney’s office, and therefore, the presumption of animo revocandi did not apply.

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‘‘A will or any part thereof is revoked * * * by being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it by the testator or by another person in his presence and by his direction.’’ [Citation.] Revocation by an act or by a subsequent instrument must be accompanied by an intention to revoke, and, without the intention, revocation does not take place. [Citation.]

Generally, contestants of a will have the burden of establishing revocation. [Citation.] However, when the testator takes possession of his will and it cannot be found at his death, the law presumes that the testator destroyed the will animo revocandi. [Citations.]

‘‘This is merely a presumption of fact and may be rebutted by showing by the evidence that the will existed at the time of his death, was lost subsequent thereto, or had been destroyed by another without authority to do so. ’’[Citation.] If the testator was known to have her last will in her possession or had ready access to it, and it cannot be found on her death, it is presumed, rebuttably, that she destroyed it and thereby revoked it * * *. [T]he evidence to rebut the presumption must be clear and convincing. * * *

From a review of the record, this court finds evidence which reasonably supports the factual findings of the probate court including the fact Arant was not in possession of her will. Both witnesses to the will’s execution testified they were the only ones present when Arant signed her will and Arant had possession of the will when they left her home. Arant told the witnesses to the will she intended to have the will taken to her attorney’s office.

Attorney Thomas Culclasure drafted two wills for Arant. He prepared the first will, which also excluded Golini, in 1988. He prepared the second will in 1992 after Arant’s daughter, Sally, died. The second will Culclasure drafted was picked up from his office. After it was executed, Culclasure testified the will was returned to his office. However, Culclasure said he ‘‘can only assume that the original made it back’’ to his office because he had a copy of the executed will. Culclasure stated ‘‘I did not give her the original Will, nor did I receive the original Will back, personally.’’

Culclasure maintained a card file for all wills he drafted in his practice. The card for Arant states that Arant signed her will August 5, 1992, and that ‘‘Mrs. Arant has the original.’’ This handwritten notation was written by Culclasure’s secretary. Culclasure’s practice was to put any original wills he kept in his lock-box at the bank. He searched the lock-box and all his office files but was unable to locate Arant’s original will. Culclasure did not know who may have picked up the will from his office but he thought the will had been given to someone.

Kent Sutcliffe, Arant’s grandson, testified Arant kept her important papers in a little chest and that she kept a sealed envelope in there which he thought contained her will. Sutcliffe’s stepmother, Beth, testified Arant was a very organized person and kept her important papers in a little desk in her dining room * * *. After Arant’s death, Bolton retrieved the two sealed envelopes from the two locations and took them to the probate court judge to have them opened. Only then did he discover the envelopes contained copies of Arant’s will but neither contained the original. Bolton also checked Arant’s personal lock-box at the bank but the original will was not there.

‘‘Proof that a testator, whose will cannot be found after his death, entertained a kindly or loving feeling toward the beneficiaries under the will carries weight and tends toward the conclusion of nonrevocation of the will by the testator.’’ [Citations.] Numerous witnesses testified as to the love and affection that existed between Arant and Bolton and Bolton’s daily visits with Arant as well as his cooking her meals and running her errands. Even Golini testified Bolton was ‘‘like a son’’ to Arant. Before she died, Arant gave Bolton her Power of Attorney.

Numerous witnesses also testified that Arant and Golini did not get along and that Arant stated on numerous occasions she intended to leave Golini out of her will.

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AFFIRMED.

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Smith and Roberson Business Law

ISBN: 978-0538473637

15th Edition

Authors: Richard A. Mann, Barry S. Roberts

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