Questioning the practice of executing duplicate original wills
By Lonnie Beard · June 5, 2013 · 2013 Ark. L. Notes
In categories: Estate Planning and Probate, Practice Tips, Snapshot
Drama, drama, drama!
I started teaching Wills, Trusts and Estates (which some of you may have taken as Decedents’ Estates) in the Fall 2012 semester, and I have found myself reacting like a kid with a favorite new toy. My other courses are all federal tax courses, and I must admit that finding excitement in exploring the intricacies of the miscellaneous itemized deduction is a harder sell to students than the obvious drama of life and death, warring relations, lucid intervals, omitted heirs, and jilted surviving spouses that are the fodder of my new course. This course has also provided me with my first opportunity to examine a subject area in some depth from the standpoint of Arkansas law. As I’ve prepared this new course, a number of interesting (to me) issues have presented themselves. I plan to use this new publication to explore some of these, and I hope that some of you may provide your own comments and suggestions concerning any issues raised by me and to contribute your own thoughts for publication. Ideally, this new publication can serve as a forum for the exchange of ideas, both practical and theoretical, with a special focus on Arkansas law, that can serve as an educational resource to the entire Arkansas legal community.
But first, a warning!
Law professors (like me) who are not also currently active practitioners will obviously not have the same sense of the myriad of practical realities that may influence the way a practicing attorney approaches a legal task. With that caveat in mind, I’d like to address the practice of some attorneys in having a client execute duplicate originals of the client’s will, with each properly attested. For the sake of efficiency in writing, I’m going to assume the hypothetical client is a male, and will refer to him as the “testator.”
What purpose is served by the execution of duplicate original wills?
Presumably the primary reason for doing this is to have a properly executed original to offer for probate if the other original is misplaced. With this purpose in mind, the testator may keep one of the originals while the other is held by a third party, usually the drafting attorney. The assumption must be that on the death of the testator, either of the originals can be offered for probate, but that both need not be.
Is this purpose accomplished?
As I often point out in my class, the law surrounding wills is often not particularly technical in nature – as long as no one objects. If a testator who has executed duplicate original wills dies, and the original in the testator’s possession can’t be found, the offer in probate of the other original may not, as a practical matter, cause a problem if no objection is filed. But what if there are heirs who would take, or would take more, if the offered will were determined invalid and the decedent declared intestate? For example, what if the will leaves a deceased husband’s entire estate to his surviving spouse, but the decedent is also survived by children, perhaps from a prior marriage, who would take a large part of the intestate estate if the will were declared invalid?1. Where there is an incentive to object, as here, the objection is obviously more likely to be raised.
What would be the basis for objecting to the offer of the remaining duplicate original? There could of course be objections similar to those that might be made to the offer of any will, such as that the testator lacked testamentary capacity,2 that the will was not properly attested,3 etc. There is, however, a unique objection that can be made anytime an original will was in the possession of the testator and can’t be located after the testator’s death. The objection is that the inability to locate the original that was in the possession of the testator gives rise to a presumption that the testator destroyed the original with the intent to revoke it. This presumption is in effect codified in A.C.A. 28-40-302.
Will the destruction of one duplicate original revoke both?
Under A.C.A. 28-25-109(a)(2) “a will or any part thereof” can be revoked by “being burned, torn, cancelled, obliterated, or destroyed, with the intent and for the purpose of revoking it” by the testator or at his direction and in his presence.4 Thus, if a testator possesses the only original of the will and destroys it with the intention of revoking it, the will is effectively revoked.5 If the testator possesses only a copy of the will, destroying the copy of the will does not effectively revoke the will since the copy is not the “will.”6
But what if a testator destroys the duplicate original in his possession, with the intention of revoking it, but fails to regain possession of the other original to destroy it as well? Will the destruction or other revocatory act with respect to one duplicate original be deemed to revoke both, or must the testator destroy both? Although I can’t find an Arkansas case precisely on point, courts in other jurisdictions seem almost uniformly to hold that where the testator has possession of only one of the duplicate originals, performing a revocatory act on that one original can effectively revoke both, even though the other duplicate, not in the testator’s possession, is still intact.7
What if testator had possession of the only original and it can’t be located after the testator’s death?
In Arkansas, if a testator had possession of a valid will “or had access thereto” and the will cannot be located after his death, a presumption generally arises that the testator destroyed the missing will with the intention of revoking it.8 Many states by statute provide a rule similar to that in A.C.A. 28-40-302, that the missing will cannot be probated, even if an exact copy is available, unless it can in effect be established that the missing will was merely lost rather than destroyed with the intention of revoking it. The Arkansas statute provides that not only must the terms of the missing will be “clearly and distinctly proved” by at least two witnesses (or by at least one witness and a “correct copy or draft” of the missing will), but also proof that either: (1) the missing will was still in existence at the time of the testator’s death (and thus could not have been destroyed by the testator), or (2) the missing will was “fraudulently destroyed” during the lifetime of the testator (and was thus not simply destroyed by the testator with the intent to revoke). The burden to establish the terms of the missing will is apparently higher (the proof must be “by strong, cogent, and convincing evidence”9 ) than to overcome the presumption that the missing will was revoked by destruction (“the presumption must be rebutted by a preponderance of the evidence”).10 This type of statute is sometimes referred to as a “lost will” statute, since it addresses the proof necessary to establish that the missing will was merely lost rather than revoked by destruction.
So, even if the attorney keeps an exact copy while the testator has the only original, the inability to locate the original after the testator’s death will necessitate the “lost will” proof if the testator’s estate is to pass under the terms of the missing will rather than under the laws of intestacy.
What if testator had possession of only one of duplicate originals?
But what if there were duplicate originals, the testator had only one of them, and while the testator’s original can’t be found after his death, the other original is still available? Can the proof required by the lost will statute be avoided by simply offering the other original for probate? Going back to an earlier point, if no one objects to the offer of the other original, the answer, as a practical matter, may be “yes.” But what if someone does object, because he or she will fare better with respect to an intestate estate than under the terms of the proffered will? Just as the clear weight of authority is that a testator can revoke both the original in the testator’s possession and an original in the possession of a third party by a revocatory act with respect to the one in his possession only, the weight of authority seems also to be that the inability to locate after the testator’s death the original that was in his possession raises the presumption that the testator’s “will” was revoked.11 That would mean, at least if there is an objection to the offer of the other original, that the “lost will” proof required by A.C.A. 28-40-302 would still be necessary if the terms of the will are to control the disposition of the testator’s estate.
While the availability of the other original should mean that only one witness would be required to establish the terms of the will, the proponent of the will would still have to establish that the original in the possession of the testator was either still in existence at his death or was fraudulently destroyed during his lifetime. It seems, in other words, that the same lost will proof would be required where an original in the possession of the testator can’t be found after his death whether: (1) the attorney kept a copy of the will but the testator had possession of the only original, or (2) the attorney kept a duplicate original and the testator had possession of the other original. If so, what has been accomplished by having duplicate originals rather than having the testator keep the only original while the attorney keeps only a correct copy?
What if a testator promises not to destroy the original in his possession?
Some attorneys who engage in the practice of having duplicate wills executed anticipate the misplaced original scenario by including clauses in the wills similar to the following:
I am making and executing this Last Will and Testament in duplicate and will retain the original and deposit the other with my Attorneys,..and I direct that either of said instruments be admitted to Probate as my Last Will and Testament without the other. So that there may be no presumption of revocation of this Last Will and Testament, in the event the original retained by me cannot be found after my death, I hereby declare that I will not at any time revoke this Last Will and Testament, except by a later Last Will and Testament revoking the same, or by destruction of both copies thereof. The production after my death of either copy of this Will shall be prima facie evidence that said Last Will and Testament was in full force and effect at the time of my death unless there is produced a Last Will and Testament executed by me at a date subsequent hereto.
Perhaps the presence of such a clause in the will would serve to emphasize to the testator that he should consult with the attorney if he wants to change or revoke his will, even if he has an original in his possession. Of course this emphasis could also be provided by general counseling given to the testator and perhaps by inclusion in a cover letter typically given to the testator explaining the need for periodic reviews of the terms of the will, safekeeping suggestions, etc. But would the clause above do more than emphasize the desirability of consulting with an attorney before making changes? If, despite the clause, the original in the possession of the testator cannot be located after the testator’s death, will this clause dispense with the need for the lost will proof? If so, the presence of such a clause would seem to diminish or dispense with the lost will proof whether there is a single original or duplicate originals. And if effective to do this, it would seem that this type of clause might be considered for inclusion in almost any will where the testator will have access to the original.
But is the clause effective, beyond emphasizing the need to consult with an attorney before making changes? It is certainly possible to make a contract not to revoke a will. This is usually done by the use of joint or reciprocal wills between spouses, with the contract not to revoke becoming effective on the death of the first spouse to die.12 There, the contracting parties are the two spouses (with the recipients under the survivor’s will constituting third party beneficiaries of the contract), and the consideration is their mutual promises. Moreover, these types of will contracts will generally prohibit unilateral revocation in any manner. It seems that in order to be effective, the clause above would have to be determined to be an effective contract not to revoke the will in a specific manner, by a revocatory act with respect to the will in the testator’s possession, while leaving the testator free to revoke by making another will. That is, if it is not an effective contract not to revoke by revocatory act, it seems that it would also be ineffective to prevent the requirement of the lost will proof if the original in the testator’s possession can’t be found after his death. But if it is a contract, who is the other contracting party (besides the testator) in the clause above? What is the consideration for the testator’s promise not to destroy the will? I may be overlooking something, but I can’t find a single case in which a clause similar to the above has been litigated in Arkansas or any other state. However, it seems hard to imagine that the general right of a testator to revoke a will in a manner expressly recognized by A.C.A. 28-25-109(a)(2) could be relinquished so easily outside the usual context of reciprocal wills.
Does a clause promising not to destroy a duplicate original raise a red flag?
Such a clause, indicating that the wills were executed in duplicate, raises another possible problem. If an original will is offered for probate and does not by its terms purport to be only one of duplicate originals, a court would seem to have little reason to question whether there are other originals unless there is an objection filed. On the other hand, if the original offered identifies itself as only one of multiple originals, will a court on its own initiative require that the other original(s) be produced as well? In other words, if it is clear that there were multiple originals, must all be produced? Although I cannot find a case on point in Arkansas, there is some authority that all originals should be offered or accounted for.13
Moreover, if the only original offered makes it clear that there were other originals, a party who would benefit from having the will declared invalid would seem to be put on notice that an objection can be made that the lost will proof must be satisfied.
Is there a better solution?
The possible application of the lost will proof requirements is primarily (but not exclusively) an issue only where the testator has possession of an original of the will.14 If the testator has only a copy and the original is held by the attorney, or perhaps filed with the circuit court,15 the inability to find the testator’s copy after his death would generally be irrelevant, since a revocatory act committed with respect to a copy does not effectively revoke the will.
So, wouldn’t it be better if the testator simply received a copy? The potential problems with having a testator keep the original should be clear enough, since most laypersons may not understand that changes to a will, whether partial or a full revocation, may have to be made in a certain manner to be legally effective. The cases in which the testator attempted to change a disposition in a will by simply crossing out a portion and/or writing in something else illustrate this.16 These types of changes are generally ineffective unless the changes themselves comply with the formalities required for the execution of wills, which would generally require re-execution by the testator and re-attestation by at least two witnesses. If, instead, the testator who wants to change or revoke a will consults with the attorney before doing so, the chances that the testator might attempt ineffective changes would be diminished or eliminated.
I realize of course that the realties of practice may not make this “solution” feasible, such as because the testator simply insists on keeping the original. If the testator will in fact keep the original, however, it would certainly seem wise to advise the testator, and perhaps include this advice in a cover letter, that an inability to locate the original after the testator’s death may raise a presumption that the testator revoked the will, and could mean, if the presumption is not overcome, that the testator will be considered to have died intestate.
So, what purposes will duplicate originals serve?
Having duplicate originals executed may not prevent the need to make the lost will proof if the testator had possession of one of the originals and that document cannot be located after his death, at least where an objection is made when the other original is offered for probate. In fact, executing multiple originals could increase the chances that one of the originals will be misplaced, which could also increase the chances that the lost will proof will be necessary if a court were to require that all the originals be produced or otherwise accounted for. On the other hand, if no objection is made and a court does not require by its own initiative that all originals be produced, it is possible that the remaining original can be probated more easily than if only a copy of the missing original survives.17 However, from a best practices standpoint, the testator being willing, it seems that having only one original, that is kept by the attorney or filed with the circuit court, would be preferable.
In Arkansas, a surviving spouse of a decedent who dies intestate is entitled to dower or curtesy, which, when there are also surviving children of the deceased spouse, is limited to a life estate in one-third of qualifying real estate (A.C.A. 28-11-301) and one-third of the personal property (A.C.A. 28-11-305), while the children would generally be entitled to the rest of the intestate estate (A.C.A. 28-9-214(1 ↩
A.C.A. 28-25-101 requires that a person be “of sound mind” in order to make a valid will. See, e.g., Daley v. Boroughs, 310 Ark. 274, 835 S.W.2d 858 (1992) where an objection was filed to a deathbed will. ↩
See, e.g., Norton v. Hinson, 337 Ark. 487, 989 S.W.2d 535 (1999) in which a will was held invalid because one of the attesting witnesses did not meet the minimum age requirement of A.C.A. 28-25-102(a). ↩
The Uniform Probate Code, at 2-507(a)(2), refers to such physical acts of revocation as “performing a revocatory act on the will”. ↩
See, e.g., Larrick v. Larrick, 271 Ark. 120, 607 S.W.2d 92 (1980). ↩
See, e.g., Gushwa v. Hunt, 197 P.3d 1 (New Mexico, 2008). ↩
See cases collected in 17 A.L.R.2d 805, “Destruction or cancelation of one copy of will executed in duplicate, as revocation of other copy.” ↩
See, e.g., Rose v. Hunnicutt, 166 Ark. 134, 265 S.W. 651 (1924), applying a prior version of A.C.A. 28-40-302. ↩
See, e.g., Matheny v. Heirs of Oldfield, 72 Ark.App. 46, 32 S.W.3d 491 (2000). ↩
See cases cited in Remington v. Robertson, 81 Ark.App. 36, 98 S.W.3d 44 (2003).
See cases collected in 17 A.L.R.2d 805, “Destruction or cancelation of one copy of will executed in duplicate, as revocation of other copy.” ↩
See, e.g., Gregory v. Estate of Gregory, 315 Ark. 187, 866 S.W.2d 379 (1993). ↩
See, e.g., In re Robinson’s Will, 13 N.Y.S.2d 324, 257 A.D. 405 (Supreme Court, Appellate Division, Fourth Department, New York, 1939). ↩
If the original in the hands of a third party cannot be located after the testator’s death, the issue may be whether the testator had access to it. At least a couple of Arkansas cases have concluded that the testator could not have destroyed the original held by a third party because he did not have access to it. See Rose v. Hunnicutt, 166 Ark. 134, 265 S.W. 651 (1934) (original kept in a bank safe deposit box could not be found after the death of the testatrix); McGough v. McGough, 2005 WL 2293555 (Ark. Ct. App. 2005) (attorney who drafted the will predeceased the testator and the original that had been in the possession of the attorney could not be found after the testator’s death). ↩
A.C.A. 28-25-108 allows, for a fee of $2.00, a will to be deposited with the circuit court in the county of the testator’s residence. Instructions are to be included indicating the person(s) to whom the will is to be delivered after the testator’s death. ↩
See, e.g., Dodson v. Walton, 268 Ark. 431, 597 S.W.2d 814 (1980). ↩
A.R.E. Rule 1003 provides a general rule of evidence that a “duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity or continuing effectiveness of the original….” I can’t find an Arkansas case applying this rule directly to the probate of an original or copy, and the lost will provision would seem to override the Rule where an original is missing after the testator’s death, since the inability to locate one original would seem to raise an issue of the “continuing effectiveness” of the other duplicate original. ↩