Davis Law Firm

Up in Smoke: How an Individual’s Previously Destroyed Will Can Still “Exist” at the Time of His/Her Death.

Generally, the last will and testament of a testator (the individual who makes the will) needs to meet various legal formalities to be valid. However, a testator can revoke his/her will by simply intentionally destroying the will prior to his death. As a result, the validity of a will is questioned when the will is lost or unintentionally destroyed prior to the testator’s death. So what happens when a will is lost/destroyed as a result of a house fire?

The Arkansas Court of Appeals recently addressed this issue in the case of Cunningham v. Dillard, 2019 Ark. App. 177, 2019 Ark. App. 191 (Ark. App. 2019). Prior to his death, Loy Cunningham executed two separate Wills. The first Will (the “2006 Will”) satisfied the necessary formalities of Arkansas law and was executed in 2006. The second Will (the “2010 Will”) also satisfied the necessary formalities and was executed in 2010. In the 2010 Will, Mr. Cunningham specifically revoked the 2006 Will. As a result of a fire at Mr. Cunningham’s residence in 2012, the 2010 Will was either lost or unintentionally destroyed.

Following Mr. Cunningham’s death in 2016, his daughter, who was the primary beneficiary of the 2006 Will, through a Trust, filed a petition to probate the 2006 Will. Less than two weeks later, Connie, a woman who lived with the testator during the last years of his life, filed a petition to prove the existence and validity of the missing 2010 Will. The main dispute between the parties was whether Connie could satisfy a key requirement for proving the validity of a lost/destroyed will under Ark. Code Ann. § 28-40-302 – namely, a beneficiary seeking to prove the validity of a lost/destroyed will must prove that the will was “in existence at the time of the death of the testator . . .” Mr. Cunningham’s daughter argued that it was impossible for Connie to satisfy this requirement because the parties had stipulated that the 2010 Will was destroyed by a fire in 2012 and, thus, there was no document in existence at the time of Mr. Cunningham’s death. However, Connie argued that the she only needed to prove that the 2010 Will was not intentionally destroyed and thus had a “legal existence” at the time of Mr. Cunningham’s death. The trial court found in favor of Connie and held that the 2010 Will was valid and enforceable.

On appeal, the Arkansas Court of Appeals noted that if a will is not produced after the testator’s death, it is presumed to have been revoked by the testator prior to his death. However, the Arkansas Court of Appeals held that such a presumption can be overcome if the proponent of the lost will proves that the will was not revoked or cancelled during the decedent’s lifetime. Adopting the “legal existence” standard proposed by Connie and due to the parties’ stipulation that the 2010 Will was accidentally lost or destroyed as a result of a house fire, the trial court concluded that Mr. Cunningham did not revoke or cancel the 2010 Will during his lifetime. The Arkansas Court of Appeals accepted the trial court’s determination that Connie proved the 2010 Will was not intentionally destroyed. In addition, it confirmed that under Arkansas law only “legal existence” is necessary to satisfy the requirement that a will be in existence at the time of the testator’s death. Accordingly, if a will is lost or even destroyed by a fire, a beneficiary may still be able to prove the validity of the will.

 

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