Estate of Fowler v. Perry , 1997 Ind. App. LEXIS 762 ( 1997 )

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

John Bradshaw, Jr. (“Bradshaw”) appeals from the trial court’s order that denied probate of a “duplicate original” of Margery S. Fowler’s will. Lea Ellen Perry, Fowler’s niece, contested probate of the duplicate will on the grounds that the original will was lost and presumed destroyed with an intent to revoke it. The trial court denied probate and ordered that Fowler’s estate be administered intestate. The sole issue presented for our review is whether the trial court erred when it refused to admit the duplicate will to probate.

We affirm. ^*

FACTS

Fowler executed a will on November 9, 1993, that left the residuary of her estate to John Bradshaw, Sr., or to his three children, if Bradshaw should predecease her. Bradshaw, Sr. did, in fact, predecease Fowler, and John Bradshaw, Jr. and his two siblings became the beneficiaries of Fowler’s estate.

When Fowler executed her will, her attorney instructed her to execute both the original and an “original duplicate.”¹ Fowler’s attorney testified that it is his normal practice to tell clients that the duplicate is as valid as the original and that they should contact him if the original will has been lost, modified or revoked so that he will “know what to do” about the duplicate. Fowler took possession of the original will, and her attorney retained the duplicate in his office.

In 1994, Fowler’s health began to deteriorate. She suffered a stroke in 1995 and was admitted to a nursing home. Fowler’s neighbor, Glen Gregerson, was appointed temporary guardian of her person and estate. Fowler died on February 23, 1996, in the nursing home. The will that Fowler had executed in 1993 was never found. Lea Ellen Perry, Fowler’s niece, was appointed ad-ministratrix of Fowler’s estate. Subsequently, Bradshaw submitted a petition to probate the duplicate of Fowler’s will that her attorney had retained. Perry objected to probate of the duplicate, and a hearing was held.

Gregerson testified at the hearing that, as Fowler’s guardian, he had access to Fowler’s home and to her safe deposit box and that he was joint owner of Fowler’s bank accounts until his name was later removed. Gregerson also testified that Perry and her siblings did not have access to Fowler’s residence.² Gregerson did not find the 1993 will among Fowler’s possessions after her death, although he did find an earlier will.

The trial court denied probate of the duplicate original, stating that Fowler’s will was presumed destroyed with an intent to revoke it and that Bradshaw had failed to overcome that presumption with evidence that the will had not been destroyed. Bradshaw now appeals from that judgment.

DISCUSSION AND DECISION

Bradshaw contends that the trial court erred when it refused to probate the duplicate of Fowler’s will. Specifically, he argues that the evidence is insufficient to show that Fowler intended to revoke her will. We cannot agree.

In Indiana, the general rule is that where a testator retains possession or control of a will and the will is not found at the testator’s death, a presumption arises that the will was destroyed with the intent to revoke it. Matter of Estate of Borom, 562 N.E.2d 772, 775 (Ind.Ct.App.1990). The proponent of the will may rebut that presumption by introducing evidence which tends to support a contrary conclusion such that destruction with the intent to revoke is disproven by a preponderance of the evidence. Id. When a copy of the will is offered for probate, and probate of the copy is contested, the burden of proof remains on the contesting party throughout the proceeding to establish that the will was in fact revoked. Ind.Code § 29-1-7-20. However, the conte-star is aided by the presumption of destruction with the intent to revoke. Matter of Estate of Borom, 562 N.E.2d at 776. That presumption shifts the burden of going forward to the proponent of the will to present evidence to rebut the presumption. Id. Of course, the contestar still retains the ultimate burden of proof. Id.

Here, Bradshaw argues that the existence of an executed “duplicate original” of the lost will sufficiently rebuts the presumption that Fowler intended to revoke her will. However, our courts have attributed little significance to the fact that the lawyer retained a copy of the original will which was later lost or mutilated. See Roberts v. Fisher, 230 Ind. 667, 105 N.E.2d 595, 599 (1952); Matter of Estate of Miller, 172 Ind.App. 21, 359 N.E.2d 270, 273 (1977).

In Matter of Estate of Miller, the testator executed a will and two duplicates, one of which was retained by his attorney. Matter of Estate of Miller, 359 N.E.2d at 271. Six months after executing the will, the testator entered a nursing home and died soon thereafter. Id. The original will was never found, and the trial court admitted the attorney’s copy to probate Id. We reversed and held that where an original will is either mutilated or lost with a presumed intent to revoke, all duplicates are presumed revoked as well. Id. at 273. The evidence in Matter of Estate of Miller showed that the testator had been in actual custody and control of the will prior to entering the nursing home and, therefore, had ample opportunity to destroy it. Id. Further, the will proponent failed to present any additional evidence to show that the testator did not intend to revoke his will.³ Id.

As Matter of Estate of Miller indicates, the existence of a duplicate does not, in itself, rebut the presumption of revocation. Thus, it remains incumbent upon the will proponent to go forward with additional evidence that the will was not revoked. Like the testator in Matter of Estate of Miller, Fowler had access to her will for some 17 months, from its execution in November of 1993 until May of 1995, when she was admitted to a nursing home. Further, Gregerson testified that Perry and her siblings — Fowler’s heirs — did not have access to Fowler’s residence, possessions or safe deposit box. See Cope v. Lynch, 132 Ind. App. 673, 683-84, 176 N.E.2d 897, 902 (1961) (presumption can be rebutted with evidence that interested party had access to will and may have destroyed it).

As we have previously noted, it was Fowler’s attorney’s custom to instruct his clients that the duplicate and the original will are “equally valid.” Thus, Bradshaw reasons that Fowler must have believed that either will could be probated and that, because she never informed her attorney of her intention to revoke, the presumption of revocation has been overcome. We cannot agree. Even assuming that Fowler’s attorney gave her such an instruction, that does not establish that Fowler understood the instruction when it was given, that she remained aware of it, or that she was capable of acting upon it from the date she executed her will until the date of her death. The evidence shows that Fowler suffered a stroke and that in the eight months immediately prior to her death, she was hospitalized, confined to a nursing home, incapacitated, and subject to a guardianship.⁴ See Ind.Code § 29-3-1-7.5. The evidence supports the conclusion that during that period Fowler would have been unable to notify her attorney of her intention to revoke her will.

The decedent’s attorney described the copy in his possession as an “original duplicate,” which he explained meant a photocopy of the original will executed in the same manner as the original. We recognize that the difference between a typed “ribbon copy” and a “carbon copy” has been eclipsed in an era in which laser printers can produce an unlimited supply of “original” documents. Notwithstanding advances in word processing technology, it is still the intent of the testator rather than the quality of the duplicate that controls.

The term “original duplicate” is an oxymoron which obscures the well-established distinction in our law between an original will and a copy. There can be only one “original” will, and the power to revoke a will remains with the testator even if his attorney may also have retained an executed copy. We acknowledge that Indiana attorneys often retain copies in their files of wills bearing original signatures and that it is not uncommon for such copies to be offered and admitted to probate when there is no objection. However, in those cases where the original will cannot be found and an objection to probate is raised, it is well settled that there is a presumption that the will was destroyed with an intent to revoke.

Bradshaw describes Fowler’s “duplicate original” will as a precaution against the inadvertent loss of the original. That contention assumes that the will was lost rather than destroyed. However, when the original will cannot be located, it is not assumed to have been lost but presumed to have been destroyed with an intent to revoke. A duplicate will does not survive revocation of the original. As we stated in Matter of Estate of Miller:

It is also the general rule that when a mutilated ribbon copy of a will is found in the possession of the testator at his death, or the ribbon copy is traced to testator’s possession and cannot be found not only is the original copy revoked, but all duplicates of the original are presumed revoked as well.

Matter of Estate of Miller, 359 N.E.2d at 271. Thus, our law does not require that a testator take steps to revoke every duplicate of a will that may be in circulation, and the presence of a duplicate will in the file of Fowler’s attorney does not overcome the presumption of revocation. We conclude that the trial court did not err when it denied probate of the contested duplicate will.

Affirmed.

ROBERTSON, J., concurs. BAKER, J., dissents with separate opinion.

* We heard oral argument on May 1, 1997, at the Scott Circuit Court.

1 . In this instance, the duplicate will consisted of a photocopy of the original will. The duplicate was independently executed at the same time and in the same manner as the original.

2 . Gregerson testified at the hearing that Fowler did not like the Bradshaws because they had borrowed money from her which they had refused to repay. Although no objection was made, that testimony is inadmissable hearsay. When a case is tried to the bench, we presume that the court ignored inadmissible evidence in reaching its judgment. Shanks v. State, 640 N.E.2d 734, 737 (Ind.Ct.App.1994). However, we note that the guardianship petition submitted by Gregerson shows that John Bradshaw's estate owed Fowler $15,000.00.

3 . Evidence which would rebut the presumption might include evidence of the testator's intent at the time she allegedly revoked the will, evidence relating to the ability of the testator to obtain access to the will during the alleged period of revocation, evidence relating to the competency of the testator during the alleged period of revocation, and evidence relating to the ability of interested parties to obtain access to the will before its disappearance. Matter of Estate of Borom, 562 N.E.2d at 776.

4 . Fowler’s physician submitted the following letter in connection with the guardianship petition:

Ms. Fowler was admitted to the Clark Memorial Hospital on 5-6-95 for a severe right hemi-paresis due to a cerebral vascular accident. She was very, very slow to respond but finally responded enough to be sent to the nursing home on 5-12-95. Currently, she is certainly not capable of managing her own affairs. It is doubtful that she will ever be able to manage her own affairs or be competent to do so. At the present time she will only nod and will not speak coherently at all. She certainly, at this time, would not be capable physically or even mentally of attending any hearing.

There is no evidence in the record that her condition ever improved.