In re Estate of Haynes , 25 Ohio B. 150 ( 1986 )

Wright, J.

The first issue for our consideration concerns the standard of proof regarding the sufficiency of the evidence to rebut the presumption that the testator revoked his will. The controlling statute is R.C. 2107.26, which provides:

“When an original will is lost, spoliated, or destroyed subsequent to the death of a testator, or before the death of such testator if the testator’s lack of knowledge of such loss, spoliation, or destruction can be proved by clear and convincing testimony, * * * the court may admit such lost, spoliated, or destroyed will to probate, if such court is satisfied the will was executed according to the law in force at the time of its execution and not revoked at the death of the testator.”

This court has previously determined the appropriate standard of proof for admitting a lost, spoliated, or destroyed will to probate in In re Estate of Tyler (1953), 159 Ohio St. 492 [50 O.O. 419], and Cole v. McClure (1913), 88 Ohio St. 1. Both these cases held that to overcome the presumption that the decedent revoked his will, the proponent of the will had to satisfy the probate court by clear and convincing evidence that the will was lost, spoliated, or destroyed after decedent’s death or, if such occurred before the decedent’s death, that decedent lacked knowledge of such spoliation.

Accordingly, the standard of proof necessary to admit a lost, spoliated, or destroyed will to probate is clear and convincing evidence that the loss, spoliation, or destruction of the original will occurred subsequent to the death of the testator or before the death of the testator, but without his knowledge. Clear and convincing evidence is the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal.

The second issue for our consideration is whether the probate court properly excluded testimony proffered by Cornelia Haynes tending to establish that Phillip Ashley Haynes and John Haynes destroyed the original will, dated November 15, 1979.

Where a will is left in the custody of someone other than the testator and is not found at the death of the testator, there is no presumption that it was revoked. Annotation (1949), 3 A.L.R. 2d 949, 951; Annotation (1948), 172 A.L.R. 354, 356. However, where a will is left in the custody of a testator and cannot be found after his death a presumption arises that he destroyed the will with an intent to revoke it. Behrens v. Behrens (1890), 47 Ohio St. 323; Annotation (1932), 79 A.L.R. 1493, 1498.

The presumption is not conclusive and may be rebutted; it is by no means an impossible burden. The presumption may be overcome by proof of declarations made by the decedent, by proof of circumstances surrounding the condition of the testator or of the testator’s relations to the persons involved, or by testimony that a third party fraudulently destroyed the will.

The proceeding to admit a lost, spoliated, or destroyed will is a special statutory proceeding in which the hearsay rule is inapplicable.¹ Testimony by witnesses to declarations made by one other than the testator tending either to support or rebut the presumption is admissible on the issue of revocation. The role of the probate court is to review all facts and circumstances surrounding the condition of the testator, the execution of the will and, if the proceeding is to admit a lost, spoliated, or destroyed will, the explanation of the missing, spoliated, or destroyed will so that the court may act from all testimony that may be offered. As stated in Banning v. Banning (1861), 12 Ohio St. 437, 448: “The establishment and probate of a spoliated will is no idle ceremony, no matter of mere form, no ex ;parte proceeding; but, on the contrary, it is a proceeding on full notice, affording ample opportunity for contest * * *.” We therefore hold that the rejection of the proffered testimony was prejudicial error and requires a rehearing on the issue of revocation.

Accordingly, and for the reasons stated herein, we affirm the court of appeals’ judgment reversing the probate court and remand this cause to that court for further proceedings consistent with this decision.

Judgment affirmed and cause remanded.

Sweeney, Locher and C. Brown, JJ., concur. Holmes, J., concurs in part and dissents in part. Celebrezze, C.J., concurs in judgment only. Douglas, J., dissents.

1 We acknowledge that the Staff Note to Evid. R. 101(C)(7) indicates that a probate proceeding may become adversarial when a dispute over the admissibility of a will occurs and in that instance the Rules of Evidence should apply to the proceeding. Even if we were to hold the Rules of Evidence applicable in the present case, the prior out-of-court statements made by Phillip Ashley Haynes would be admissible as an admission by a party opponent, Evid. R. 801(D)(2).