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Keywords

probatewill
trialwill

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First Interstate Bank of Oregon v. Henson-Hammer, 98 Or.App. 189, 779 P.2d 167

Facts

The decedent, who took his own life, had prepared a will in 1985, but the original was never found after his death. The will appointed the First Interstate Bank of Oregon as the personal representative and included provisions for his daughter to receive income and principal disbursements. The daughter, who was the sole heir, argued that the evidence was insufficient to overcome the presumption that the decedent had destroyed the will with the intention of revoking it. The decedent had a history of secrecy regarding his finances and had not disclosed the existence of the will to his daughter.

Decedent took his own life on January 17, 1987, leaving an estate of more than $300,000.

Issue

Did the evidence presented overcome the presumption that the decedent revoked his will by destroying it?

Did the evidence presented overcome the presumption that the decedent revoked his will by destroying it?

Rule

When a will that was last known to be in the custody of the testator cannot be found after his death, it is presumed to have been destroyed with the intention of revoking it. The strength of this presumption depends on the control the decedent had over the will and whether others had access to it.

When a will that was last known to be in the custody of the testator or in a location to which he had ready access cannot be found after his death, it is presumed to have been destroyed with the intention of revoking it.

Analysis

The court found that the presumption of revocation was weakened by the daughter's access to the will and the fact that she stood to benefit from its revocation. The decedent had reaffirmed his estate plan shortly before his death and had instructed his daughter to take his important papers to the bank after his death. This indicated that he likely did not intend to revoke his will, and the evidence presented was sufficient to overcome the presumption of revocation.

In summary, daughter's access to the will and the fact that she would benefit by its revocation weaken the presumption.

Conclusion

The court affirmed the lower court's decision to admit the copy of the will to probate, concluding that the evidence clearly and convincingly overcame the presumption of revocation.

Affirmed.

Who won?

First Interstate Bank of Oregon prevailed in the case because the court found that the evidence sufficiently overcame the presumption of revocation of the will.

The trial court held that, although there is a presumption that a missing will was destroyed by the testator with the intention that it be revoked, the presumption was overcome by the evidence, which it found to be clear and convincing.

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