Summary
Philip Sprague appealed the denial of his petition for formal probate of an alleged will executed by Harriet Clemetson. The North Dakota Supreme Court held that the district court properly applied the presumption that a missing will was revoked and that its findings that the will was missing and the presumption had not been rebutted were not clearly erroneous.
Topics
Practice areas
Questions Presented
- Whether Philip Sprague established a prima facie case that Harriet Clemetson's alleged will was duly executed.
- Whether the foundational facts supported applying the presumption of animo revocandi to a will that could not be found after the testator's death.
- Whether Sprague rebutted the presumption that the missing will had been intentionally destroyed and revoked.
- Whether the district court's factual findings were clearly erroneous.
Holdings
- Sprague presented evidence sufficient to establish a prima facie case that Harriet Clemetson's will was duly executed under N.D.C.C. § 30.1-08-02.
- The presumption of animo revocandi applies when a duly executed will cannot be found upon the testator's death and the proponent of the presumption establishes the foundational facts by credible evidence.
- Sprague failed to rebut by a preponderance of the evidence the presumption that Harriet Clemetson intentionally revoked the missing will.
Key quotations
“The animo revocandi presumption is founded upon the observation that [p]ersons in general keep their wills in places of safety, or, as we here technically express it, among their papers of moment and concern.” (¶ 9, 812 N.W.2d at 392)
“Consequently, there is no legal inconsistency in the court’s rulings that the “testimony” was sufficient to support a prima facie case of due execution, but insufficient to prove by a preponderance of the evidence that the will was in existence at the time of Harriet Clemet-son’s death.” (¶ 19, 812 N.W.2d at 395)
Factual background
Harriet and Earl Clemetson obtained wills from an attorney in 1995, and Earl's original will was later admitted to probate. After Earl died in January 2009, Harriet changed aspects of her financial arrangements and became distressed by pressure from members of the Sprague family concerning her property and an auction of her belongings. Harriet died in October 2009, but her original will could not be found; Philip Sprague presented an unsigned and undated copy naming the grandchildren and step-grandchildren as devisees. The district court found the will had been duly executed but concluded that the evidence did not establish by a preponderance that it existed at Harriet's death, was fraudulently destroyed, or was not intentionally revoked.
Procedural history
After Harriet Clemetson died, Kenneth Evanson was appointed personal representative and reported that he was unaware of any unrevoked testamentary instrument. Philip Sprague petitioned for formal probate based on an undated and unsigned copy of an alleged will. Following a trial, the district court found that the will had been duly executed but could not be found after Clemetson's death, held that Sprague failed to rebut the presumption that the missing will had been revoked, and denied the petition. The North Dakota Supreme Court affirmed.