Copy of Missing Will and Original Codicil Overcome Presumption of Revocation

The New Hampshire Supreme Court rules that the presumption that a missing will was revoked was overcome by an attorney's possession of a copy of the will and an original codicil. In re Estate of King (N.H., No. 2002-117, March 6, 2003).

J. Douglas King executed a will in 1994 that left his estate to his second wife, Laurel King, with whom he had two minor children. Mr. King also had three adult children from his first marriage. The will conditioned bequests to these three children upon Laurel predeceasing him. On July 24, 1997, after presenting a copy of the will to attorney Ellen Peterson, Mr. King executed a codicil to the will that altered provisions for appointing the executor and trustees, but otherwise reconfirmed the 1994 will. Attorney Peterson retained the original codicil and the copy of the will.

Mr. King died suddenly on September 10, 2000. The original 1994 will was never found. Instead, Laurel obtained the 1997 original codicil and copy of the will from Attorney Peterson and filed them with the probate court. The children of the first marriage contested these documents, arguing that a presumption of revocation applied to the missing will. Following an evidentiary hearing, the probate concluded that Laurel had not overcome the presumption.

Laurel appealed, arguing that the codicil was per sesufficient to prove the will, and that in any case she had overcome the presumption of revocation at the evidentiary hearing.

The Supreme Court of New Hampshire reverses and remands, ruling that the probate court employed an incorrect legal standard. The court disagrees with Laurel that the codicil is sufficient to prove the will, but finds that the probate court erred in forcing her to overcome the presumption of revocation. The court holds that the existence of the 1997 codicil and copy of the 1994 will alone was legally sufficient to rebut the presumption. Thus, Laurel need not establish what happened to the 1994 will. The court also rules that the probate court admitted improper hearsay evidence and did not consider certain other testimony.

For the full text of this decision, go to:  https://www.courts.state.nh.us/supreme/opinions/2003/king029.htm

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