On April 25, 2012, Mr. Gayle Franklin Cook (the “Decedent”) executed a valid will at his attorney’s office. The Decedent’s brother, Mr. Cook, who had accompanied the Decedent to the office, but was not present during the will signing, took the Decedent’s original will home and placed it in his drawer with other items of importance. The Decedent died in February 2017, but Mr. Cook could not find the original will.
The Decedent’s niece, Ms. Jenkins, filed a petition in December 2017, alleging that the Decedent’s original will had been lost. She attached a copy of the will to her petition and asked that it be admitted to probate. Although the Decedent had two heirs at law, there were three beneficiaries under the Decedent’s will, including Ms. Jenkins.
The following elements must be established by the proponents of a lost will (1) that the testator made and executed a valid will in accordance with the forms of law; (2) that the will had not been revoked and is lost or destroyed or cannot be found after due and proper search; and (3) the substance and contents of the will. The only question remaining for the court was whether the Decedent revoked his will prior to his death.
Despite the heavy burden faced by the proponents of a lost will, a proponent is not required to prove absolutely that the Decedent did not revoke the will; rather, the proof must establish that it is “highly probable” that the April 25, 2012 will was not revoked by the Decedent.
The Decedent’s brother, Mr. Cook, received possession of the will immediately following its execution. Mr. Cook testified that the Decedent never had possession of the will. Although there was evidence that the Decedent visited Mr. Cook’s home, there is no evidence that the Decedent knew of the will’s location. Ms. Jenkins testified that her mother, Mr. Cook’s wife, suffered from dementia and “had a tendency to move things around, misplace things.”
Based on the uncontradicted testimony presented at trial, the court found that it was “highly probable” that the April 25, 2012 will was not revoked by the Decedent.
In re Estate of Gayle Franklin Cook, No. W2018-01766-COA-R3-CV. (Tenn. Ct. App. Apr. 10, 2019).