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appealtrialburden of proofprobatewillobjection
appealtrialburden of proofprobatewillobjectionappellee

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In re Estate of Creech, 989 A.2d 185

Facts

Anna Creech executed a will in 1992 that included specific bequests and named her nephew, Cleveland Mitchell, as personal representative. In 1995, she executed a codicil that revoked certain provisions of the 1992 will and appointed a new alternate personal representative. After her death in 2001, a petition for standard probate was filed, but objections were raised regarding the admission of the 1995 codicil, which was only a copy. The trial court admitted the 1992 will to probate and denied the codicil, leading to an appeal.

On August 13, 1992, Anna Creech executed a will (“1992 will”) which contained eighteen items. Several of those items bequeathed various possessions to specific persons. For example, in Item VI, Ms. Creech left her china closet to her nephew, Cleveland Mitchell. In Item XIII, Ms. Creech bequeathed “the entire residue of my estate, whether real, personal or mixed, of every kind, nature and description whatsoever … to all of my nieces and nephews who survive me.” In addition, in Item XIV, Ms. Creech nominated Mr. Mitchell as her personal representative, and named one of her nieces, appellee Lettie Gaskins, as his alternate.

Issue

Did the trial court err in admitting the 1992 will to probate while sustaining objections to the 1995 codicil, and does the presumption of revocation apply in this case?

Did the trial court err in admitting the 1992 will to probate while sustaining objections to the 1995 codicil, and does the presumption of revocation apply in this case?

Rule

A will or codicil may be revoked by executing a later will or codicil, or by destroying it with the intention of revoking it. A prior will may not be revived unless it is re-executed or a new codicil is executed, and the presumption of revocation applies if the original cannot be found at the testator's death.

A will or codicil may be revoked by executing a later will or codicil, or by destroying it with the intention of revoking it. A prior will may not be revived unless it is re-executed or a new codicil is executed, and the presumption of revocation applies if the original cannot be found at the testator's death.

Analysis

The court determined that the 1995 codicil was properly executed and that the trial court erred in admitting the 1992 will in its entirety. The court emphasized that revocation of the codicil would not reinstate the previously revoked provisions of the will. Furthermore, the presumption of revocation did not apply since the original codicil was last seen after Ms. Creech's death, and the burden of proof lay with the party seeking to probate the copy of the codicil.

The court determined that the 1995 codicil was properly executed and that the trial court erred in admitting the 1992 will in its entirety. The court emphasized that revocation of the codicil would not reinstate the previously revoked provisions of the will. Furthermore, the presumption of revocation did not apply since the original codicil was last seen after Ms. Creech's death, and the burden of proof lay with the party seeking to probate the copy of the codicil.

Conclusion

The Court of Appeals reversed the trial court's decision and remanded the case for further proceedings to determine whether the 1995 codicil was revoked.

The Court of Appeals reversed the trial court's decision and remanded the case for further proceedings to determine whether the 1995 codicil was revoked.

Who won?

The Court of Appeals ruled in favor of Ms. Ward–Allen, the grandniece, reversing the trial court's decision and allowing for further proceedings regarding the codicil.

The Court of Appeals ruled in favor of Ms. Ward–Allen, the grandniece, reversing the trial court's decision and allowing for further proceedings regarding the codicil.

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