Summary
The District of Columbia Court of Appeals held that revocation of a later codicil did not revive portions of an earlier will that the codicil had revoked. The court also addressed the rebuttable presumption that a missing original will or codicil was destroyed by the testator with intent to revoke it. The court reversed and remanded for factual findings concerning the whereabouts and accessibility of the original 1995 codicil.
Court
District of Columbia Court of Appeals
Jurisdiction
District of Columbia
Decision date
February 18, 2010
Docket number
No. 08-PR-1246
Disposition
reversed_and_remanded
Questions Presented
- Whether revocation of the 1995 codicil, if proven, would revive the revoked provisions of Creech's 1992 will.
- Whether the presumption that a missing will or codicil was destroyed by the testator with intent to revoke applies when the original may have been sent to another person before the testator's death.
- Whether the Superior Court properly admitted the 1992 will in its entirety after sustaining objections to probate of the copy of the 1995 codicil.
Holdings
- Revocation of the 1995 codicil would not revive Items VI, XIII, and XIV of the 1992 will because those provisions were revoked upon execution of the properly executed codicil and could be revived only by re-execution of the earlier will or execution of a new codicil showing an intent to revive them.
- When an original will or codicil known to have been in the testator's custody or readily accessible to the testator cannot be found at death, a rebuttable presumption arises that the testator destroyed it during life with intent to revoke it. The proponent of a copy must rebut that presumption by a preponderance of the evidence.
- The 1992 will could not be admitted in its entirety because the provisions revoked by the 1995 codicil remained revoked. The matter had to be remanded for factual findings on whether Creech revoked the codicil; if she did, the affected property would pass under intestacy, and if she did not, the codicil should be admitted to probate.
Court Document
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