The Court of Appeals of Tennessee holds that a woman failed to rebut the presumption of revocation when attempting to admit a copy of a missing will to probate. In Re Estate of William Rucker (Tenn. Ct. App. No. M2023-01120-COA-R3-CV, July 2, 2024).
William Rucker had a daughter from an extramarital relationship, Todgie Vu. His estranged wife and their two daughters knew nothing about her until after his death when she attempted to probate his 2017 will. The will left everything to her, disinheriting his wife and other daughters. However, she only had a copy, and the original, expected to be in a safety deposit box, could not be found.
Mr. Rucker had owned three properties: one only in his name, one he transferred to a daughter from his marriage during his lifetime, and one he owned as tenants by the entirety with his wife. At the trial, testimony indicated that Mr. Rucker intended Ms. Vu to have the property he owned alone – not his entire estate. In 2020, a neighbor drove him to his attorney’s office to update his will. Ms. Vu testified that she communicated with two of her father’s attorneys. One gave her the copy of the 2017 will; she said she could not remember what the other said.
The trial court looked to Mr. Rucker’s intent and admitted the will. The court reasoned that although the will transferred the total estate to Ms. Vu, its practical effect was that he provided for all his daughters. Since he already gave one property to a daughter, and one went to his wife automatically, only one property transferred under the will to Ms. Vu.
On appeal, the court reviews whether it is highly probable the proof established that Mr. Rucker maintained his lost 2017 will and did not revoke it. Since the will was missing, Ms. Vu must overcome the presumption against revocation.
Although it is possible Mr. Rucker never revoked the 2017 will, Ms. Vu does not meet the evidentiary standard. She failed to show that lack of revocation was highly probable.
The record’s portrait of Mr. Rucker’s intent conflicts with the 2017 will. No one testified that Mr. Rucker wanted Ms. Vu to have his entire estate upon his death. The testimony only showed he wanted her to have one of his properties, and even indicated that he intended to change his will in 2020 when he went to his attorney’s office. The evidence further suggested that the will would be in a safety deposit box, which was empty, pointing to revocation. Finally, Ms. Vu’s failure to remember her conversation with the second lawyer does little to help her argument.
While the record does suggest that Mr. Rucker wanted Ms. Vu to have one of his properties, she did not meet the heavy burden to probate the 2017 will that left her everything. The appellate court reverses the trial court’s order admitting the 2017 will to probate.
Subscribe to the Knowledge Bank.
