HARRISON V. BIRD
621 So. 2d 972 (1993)


Procedure: The proponent of a will appeals from a judgment of the Circuit Court of Montgomery County holding that the estate of Daisy Virginia Speer, deceased, should be administered as an intestate estate and confirming the letters of administration granted by the probate court to Mae S. Bird.

Facts: Decedent's will named Katherine Crapps Harrison as the main beneficiary of her estate. The will's original version was retained by the decedent's attorney and a duplicate was given to Ms. Harrison. On March 4, 1991, the decedent telephoned the attorney to revoke the will and the will was torn into four pieces. The attorney informed the decedent that he had revoked the will and sent pieces of the will for verification. Pursuant to decedent's death after a few months, the four pieces of the will were not found. On September 17, 1991, the probate court granted letters of administration to Mae S. Bird, decedent's cousin. The Circuit Court noted that decedent had revoked the will and advised the appellant Harrison to rebut the presumption.

Issue: If a decedent's will is known to be in their possession, but the will cannot be found after the decedent's death, can a rebuttable presumption arise that the decedent destroyed the will?

Holding:No. Judgment affirmed. Even though a duplicate exists that was not in Ts possession, if T had possession of her will before her death, and the will is not found after her death, a presumption arises that T revoked her will and all duplicates. P argued that the facts (that Ts attorney destroyed the will outside of T's presence, T had possession of the pieces, and such pieces were not found, are not sufficient to invoke the presumption of revocation. This argument is without merit.

Rule: There can be no ratification of the destruction of decedent's will, which was not accomplished pursuant to the strict requirements under the requisite law. (Ala. Code 1975, § 43-8-136(b)(2).)


Analysis:We note Ms. Harrison's argument that under the particular facts of this case, because Ms. Speer's attorney destroyed the will outside of Ms. Speer's presence, “the fact that Ms. Speer may have had possession of the pieces of her will and that such pieces were not found upon her death is not sufficient to invoke the presumption [of revocation] imposed by the trial court.” The Court found that argument to be without merit.