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Oklahoma Bar Journal

Lost Wills and the Meaning of ‘Existence’

By David M. Postic

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Every single will you have prepared could be denied probate. Let that sink in.

Even if the will was properly executed pursuant to statute. Even if the testator was competent and not subject to undue influence, fraud or duress. Even if the testator did not revoke the will after executing it. Even then, the will might be inadmissible.

This is not a rare phenomenon, an exception to the rule. It is the reality of a lost will.

With very limited exceptions, a will cannot be given effect unless the original instrument is produced for probate.[1] The law presumes that a testator destroyed their will if the original cannot be found after their death.[2] This presumption is a rebuttable one, but Oklahoma, even more than other jurisdictions, makes the presumption very difficult to overcome.

Under 58 O.S. §82 (Section 82), the terms of a will may be given effect, even when the original cannot be found, 1) if the will “is proved to have been in existence at the time of the death of the testator” or “is shown to have been fraudulently destroyed” during the testator’s lifetime and 2) if the terms of the will “are clearly and distinctly proved by at least two credible witnesses.”[3]

While this statute may seem uncomplicated on the surface, it leaves a lot in question. What does it mean for a will to be “in existence” at the death of the testator? What does it mean for a will to be “fraudulently destroyed”? Can the two witnesses who must “clearly and distinctly” prove the terms of the lost will refer to a photocopy of the executed will to refresh their recollection? Can the court rely on a photocopy of the lost will to prove its terms in lieu of one or both witnesses?[4]

It would take many more pages than I am allowed here to explore all those issues. (Besides, no one wants to read that much about probate procedure.) Instead, this article focuses on the crucial threshold question for probating lost wills: What does it take to prove that a lost will was “in existence” at the death of the testator?

WHAT IT MEANS FOR A WILL TO BE ‘IN EXISTENCE’

Proving that a will was “in existence” at the testator’s death requires proof of two facts: 1) that the will was ever in existence, i.e., that it was properly executed by a person with the capacity to do so, and 2) that the will remained in existence until the testator’s death. The first of those topics is ground well-trod. The second, much less so.

There are only a handful of published cases in which Oklahoma courts have discussed the probate of lost wills in any real substance.[5] None of those cases define what it means for a will to be “in existence” within the context of Section 82. And of the two cases decided on the basis of the will’s existence or nonexistence, neither contains analysis that clarifies the meaning of the statutory language.[6] Even Oklahoma Probate Law and Practice – the gold standard in elucidating this area of state law – dedicates barely a sentence to the matter of a lost will’s “existence.”[7]

At first blush, whether a will “exists” seems simple. If a will was duly executed and not been revoked prior to the testator’s death, it remains ipso facto in existence. But consider the dilemma inherent in the probate lost wills: Without a physical document, how is a court to decide whether the will was revoked? Although a will must have a physical existence to be created,[8] the mere ending of its physical form is not sufficient to revoke it. A will is revoked by destruction or other physical act only if the act is performed on the instrument “with [the] intent and for the purpose of revoking the same.”[9] If a will can be destroyed but not revoked for lack of revocatory intent, then its continued “existence” under the law is not contingent on the document’s preservation. The legal existence of a will is distinct from its physical existence.[10] Accordingly, to prove that a lost will “existed,” the proponent needs to show only that the will had a legal existence at the time of the testator’s death – that the testator had not revoked it.[11]

But this does not resolve the dilemma. The court is still left with the task of determining whether the will was, in fact, revoked. And without the deceased testator available to say if they did, in fact, destroy the will and, if so, whether they did so with the intention to revoke it, making that determination with any degree of certainty can be nearly impossible. The law resolved this problem through the doctrine of presumed revocation.[12] As with many other legal presumptions, the doctrine is rooted in practicality:

If a will is traced to the testator’s possession and cannot be found after death, there are three plausible explanations for its absence: The testator destroyed it with the intent to revoke; the will was accidentally destroyed or lost; or the will was wrongfully destroyed or suppressed by someone dissatisfied with its terms. Of these plausible explanations, the law presumes that the testator destroyed the will with intent to revoke it.[13]

All three explanations for a lost will are plausible, and any of them could be true in a given case. Yet the law always presumes intentional revocation, provided the will was last known to be in the testator’s possession. The requirements of Section 82 apply even if the will was last known to be in the possession of someone other than the testator. However, the fact that it was not in the testator’s possession can support a finding that the will was “fraudulently destroyed.”

HOW TO PROVE A WILL’S EXISTENCE

Having determined that Section 82 requires a lost will to have a legal, but not necessarily a physical, existence, there remains the more difficult question of how to prove that existence. The burden to do so falls on the proponent of the will.[14] To succeed in that endeavor, it is crucial to know not only the quantum of evidence required by statute but also the type of evidence that is probative of the issue.

Evidentiary Burden

Section 82 imposes a different evidentiary burden for proving a lost will’s existence than for proving its terms. The plain language of the statute expresses that the terms of a lost will must be “clearly and distinctly proved” but its existence merely “proved.” The absence of the modifiers “clearly” and “distinctly” implies a lower standard of proof than that imposed where those modifiers appear.[15] Likewise, only the terms of the will (its substantive provisions) must be proved “by at least two credible witnesses.”[16] There is no such requirement for proving the will’s due execution (except in the case of a will contest[17]) or its continued existence at the time of the testator’s death,[18] which must simply be “proved.”

Despite the relative clarity of the statutes, courts over the years have interpreted the law as requiring the lost will’s due execution, its existence at the testator’s death or its fraudulent destruction, and its terms to all be “clearly and distinctly proved by two witnesses.” This confusion seems to stem from the 1938 Oklahoma Supreme Court case of Day v. Williams.[19] In interpreting the requirements of Section 82, the court stated:

Where a copy of a purported lost holographic will is offered for probate, the execution of the will exclusively in the handwriting of the testator, the existence of the will at the testator’s death, and the provisions of the will must all be clearly and distinctly proven by at least two credible witnesses.[20]

Later in the same opinion, however, the court held:

There is no provision in [Section 82] that requires proof by two witnesses of the execution of a lost will or of its existence at the time of the death of testator. Sufficient testimony to convince the court of the fact is all that is required. ... The requirement of the proof of at least two credible witnesses applies only to the provisions of the lost will, which must be clearly and distinctly proven.[21]

In both of these passages, the court addressed the evidentiary standard for proving the facts required by Section 82 to probate a lost will. But the rule it set forth in the first passage appears to conflict with the rule in the second. The first passage states in no uncertain terms that the will’s execution, existence and terms “must all be clearly and distinctly proven” by at least two witnesses. Yet the second passage asserts in equally definitive language that the requirement of proof by two witnesses “applies only to the provisions of the lost will” and that “[s]ufficient testimony” of the will’s execution and existence satisfies the evidentiary burden. This more relaxed standard squares with the well-settled proposition that the proponent of a will must establish its due execution by a preponderance of the evidence.[22]

Notwithstanding these ostensibly divergent statements of the law, the Day court went on to apply the more relaxed standard. It found that “the testimony was sufficient to establish the fact that [the testator] had prepared” a valid will.[23] It also found that “the testimony was sufficient to further show” that the instrument alleged to have been the testator’s lost will (a copy of which was produced) was in existence when the testator died.”[24] Although the court ultimately affirmed the denial of probate, it did so because the evidence not “sufficient” to show that the testator’s will and the copy produced to the court were one and the same.[25] The court observed that there was:

nothing in the judgment of the [trial] court to indicate what particular feature, if any, of the evidence required was held insufficient. That being true, error cannot be based upon the charge that the court required a greater and higher degree of proof as to the execution of the will and the existence of the will at the time of the death of the testator than is required by law, nor that the demurrer was sustained on the ground of the failure to prove these two facts by at least two credible witnesses.[26]

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In other words, the Day court did not affirm the trial court ruling because the will’s existence was not “clearly and distinctly proved” by two witnesses. It affirmed because it did not see any legal error committed by the trial court based on the record before it.

Nevertheless, Oklahoma courts have consistently cited Day for the proposition that the “evidence needed to establish the existence … of the will which is not produced must be clear and convincing.”[27] “The evidence concerning both the existence and the contents of the will must be clear and convincing.”[28] “In Day v. Williams, this court held that the existence of the will alleged to have been lost, must be clearly and convincingly proved to have been in existence.”[29] Prevailing case law, therefore, places Oklahoma in the majority of states that require clear and convincing evidence to rebut the presumption that a lost will was revoked.[30]

Relevant Evidence of Existence

Knowing that the law requires clear and convincing evidence of a lost will’s legal existence is one thing. Carrying that burden is another. To do so, the proponent of the will should look to both direct evidence and circumstantial evidence.[31] Although direct evidence will always be the easiest way to overcome the presumption of revocation, it is not always available.

The clearest direct evidence that the testator did not revoke their will is the testimony of witnesses who saw the original instrument – without any kind of revocatory act performed upon it – after the testator’s death, before it was lost or destroyed. If the will had a physical existence at the testator’s death and was not revoked by a later will made during the testator’s lifetime, it also continued in legal existence. Slightly less powerful, but generally still sufficient, is evidence that the will was accidentally destroyed by the testator (i.e., without revocatory intent) or that it was destroyed by another person without the testator’s consent.[32]

Yet, even in the absence of direct evidence, the presumption that a lost will was revoked can be overcome with compelling circumstantial evidence. Oklahoma courts have noted several examples of circumstantial evidence that might show a will was “in existence” at the testator’s death. Perhaps the most important evidence of this variety is proof that the will was not in the testator’s possession and control at the time of death. Whereas “failure to produce or find a will known to have been in the possession of the testator or readily accessible thereto prior to his death” raises a presumption of revocation,[33] the same does not hold true if the will was not in the testator’s possession.[34] Only the testator or another person “in his presence and by his direction” can revoke a will by physical act.[35] Accordingly, if the will was not in the testator’s possession or control, it could not have been properly revoked.

Declarations of a testator after executing their will are also admissible as “corroborative evidence to prove [the will’s] existence.”[36] (Though declarations of the testator are not admissible to prove the terms of a lost will, which must be established by the personal knowledge of the two required witnesses.)[37] This variety of evidence is not limited to statements by the testator shortly before death affirming that they still have a valid will. Statements by the testator that they could not find their will, that they were looking for their will or that they wanted to make changes to their will can be probative of the will’s existence.[38] Even the absence of statements by the testator indicating a desire to revoke the will can be relevant.[39]

Other courts have considered certain behaviors and actions of the testator as relevant. One court concluded that the presumption of revocation was rebutted where the testator, whose original will could not be found, retained a photocopy of the will together with an executed codicil in the same envelope until his death.[40] Another court took into account the fact that the testator “was a very old man” who “frequently took papers out of [his] trunk [where he kept his will] for the purpose of lighting his pipe,” finding it “in no degree improbable” that he could have accidentally destroyed the will in this way.[41] Other circumstances courts have deemed relevant to determining the existence of a lost will include: the testator’s relationships with the beneficiaries under the will; the habits of the testator in taking care of personal effects; whether the testator, during their lifetime, made any dispositions of property that contradict the terms of the lost will; whether the testator understood the consequences of not having a will and the effects of intestacy; and whether the terms of the lost will are reasonable.[42]

One of the most famous English cases on lost wills, Sugden v. Lord St. Leonards, involved the will of Edward Burtenshaw Sugden, a renowned British lawyer and former lord chancellor of Great Britain.[43] In determining whether the probate court had properly ruled that the will remained in existence at Mr. Sugden’s death, the Court of Appeals noted that “it would be difficult to find anyone who had a deeper sense of the importance of testamentary dispositions [than Mr. Sugden].”[44] The chief justice remarked, “It seems to me utterly impossible to suppose that, under these circumstances, such a man as [Mr. Sugden] would voluntarily have destroyed this will, whether for the purpose of revoking it, or making another, or for any other purpose that could be conceived.”[45]

A more difficult question is what consideration, if any, should be given to evidence that someone other than the testator had an opportunity to destroy the will (where fraudulent destruction is not actually proven). On the one hand, fraud is never presumed,[46] so the fact that “persons injuriously affected by the will had opportunities to destroy it” is not, standing alone, sufficient to rebut the presumption that it was revoked by the testator.[47] On the other hand, the possibility that the will may have been destroyed by someone other than the testator is certainly relevant to the issue of the will’s existence.[48]

The evidence needed to prove by clear and convincing evidence that a lost will was “in existence” at the testator’s death depends on the facts of the case. Many attorneys focus solely on finding direct evidence of the will’s physical existence. While such evidence, when available, is often the most straightforward way to satisfy the burden of proof, circumstantial evidence can be just as effective to rebut the presumption of revocation.

CONCLUSION

Courts rarely explain why, of the three plausible explanations for a missing will, the law presumes intentional revocation in every case. When they do, the answer usually echoes the same notes. “A will is universally recognized as a sacred document,”[49] and there is “a logical inference that a person of ordinary prudence would keep safe an original document as important as a will.”[50] Accordingly, if the original “be not found in the repositories of the testator, ... the common sense of the matter, prima facie, is that he himself destroyed it, meaning to revoke it.”[51]

However, there are clients who lose important legal papers, use them as grocery lists or otherwise treat them as something less than “sacred documents." In an age where some documents never exist in physical form, many people assume that a copy is just as effective as the original. That assumption is not unreasonable, considering the presumption of revocation has been largely reversed for nonprobate transfers.[52] Yet, as in many things, wills law is slow to adapt. In light of these changing norms and expectations, is it still rational to presume that a lost will was revoked? Is it acceptable to ignore the expressed testamentary intent of a decedent even when there is no direct evidence of revocation?

For now, it is up to attorneys to vindicate the wishes of those who can no longer speak for themselves. And when a will is lost, that means knowing how to prove, to the satisfaction of the law, that the will was “in existence” and therefore should be given effect.


ABOUT THE AUTHOR

David M. Postic is a shareholder at Postic & Bates PC in Oklahoma City, practicing primarily in the areas of estate planning, probate and trust administration. He serves as an adjunct professor, teaching wills and trusts at the OU College of Law. He can be contacted at posticd@posticbates.com.

 

 

 


ENDNOTES

[1] See 58 O.S. §82.

[2] In re Estate of Shaw, 1977 OK 237, ¶18, 572 P.2d 229 (“[F]ailure to produce or find a will known to have been in the possession of the testator or readily accessible thereto prior to his death, raises a presumption of revocation of such instrument.”).

[3] 58 O.S. §82. See also Day v. Williams, 1938 OK 554, ¶35, 85 P.2d 306 (stating that “clearly and distinctly proved” is equivalent to the “clear and convincing” evidentiary standard).

[4] The short answer to this last question is “no.” While a photocopy of a signed will can be admitted into evidence, 58 O.S. §82, the statutory requirement of proving its terms by two witnesses is “mandatory and may not be disregarded.” Janzen v. Claybrook, 1966 OK 200, ¶23, 420 P.2d 531. Admitting a copy is primarily useful for establishing that the lost will was properly executed or for resolving a dispute over the exact terms of the will.

[5] See Day v. Williams, 1938 OK 554, 85 P.2d 306; Johnson v. Bruner, 1950 OK 139, 219 P.2d 211; Nickell v. Nickell, 1952 OK 446, 251 P.2d 787; Janzen v. Claybrook, 1966 OK 200, 420 P.2d 531; Estate of Malloy v. Gillentine, 1975 OK CIV APP 11, 529 P.2d 1400; In re Estate of Robb, 1978 OK CIV APP 31, 581 P.2d 1327; In re Estate of Wilson, 1994 OK CIV APP 31, 875 P.2d 1154; and In re Estate of Goodwin, 2000 OK CIV APP 147, 18 P.3d 373. I have not included In re Estate of Shaw, 1977 OK 237, 572 P.2d 229 (a case involving duplicate original wills), in this list because, although the opinion touches on the topic of lost wills, it did not involve the probate of a lost will, and the court did not interpret Section 82 or rely on the statute in its holding. See id. at ¶17 (“In our opinion [58 O.S. §82] does not aid in determining the status of executed duplicate wills, particularly if each will is entitled to equal dignity and force.”).

[6] See Janzen v. Claybrook, 1966 OK 200, ¶29; In re Estate of Goodwin, 2000 OK CIV APP 147, ¶15.

[7] 1 R. Robert Huff, Oklahoma Probate Law and Practice §8.8, at 124 (3d ed. 1995).

[8] See 84 O.S. §55 (requiring that attested wills “must be in writing”). See also 84 O.S. §54 (providing that every holographic will must be “written”).

[9] 84 O.S. §101.

[10] 79 Am Jur 2d Wills §1071, at 199 (1975) (“A will may continue to exist although the paper upon which it was written has been destroyed.”) See Betts v. Jackson, 6 Wend. 173, 180 (N.Y. 1830) (“There can be no possible doubt as to the validity of a will or codicil duly executed, although it be destroyed in the lifetime of the testator, if so destroyed by fraud or mistake and without his consent.”).

[11] See, e.g., In re Estate of Moramarco, 86 Cal. App. 2d 326, 194 P.2d 740 (Cal. Ct. App. 1948); 3 William J. Bowe and Douglas H. Parker, Page on the Law of Wills §29.156 (rev. ed. 1961). Although this interpretation of “existence” has not been expressly affirmed in Oklahoma, courts have had the opportunity to reject the argument and have not done so. See, e.g., Janzen v. Claybrook, 1966 OK 200, ¶26 (noting that appellant had argued on appeal that there was evidence the lost will “was still in legal existence at the time of the testator’s death”); Estate of Malloy v. Gillentine, 1975 OK CIV APP 11, ¶3 (mentioning appellees’ argument that “the said Will had a legal existence and remained unrevoked at the time of the death of the said Testatrix”).

[12] The presumed revocation of a lost will has been a part of the Anglo-American legal tradition for centuries. See, e.g., Helyar v. Helyar, [1754] 1 Lee 472, 5 Eng. Ecc. 416 (“It is a presumption of law that a will never out of the deceased’s custody, and not appearing at his death, has been destroyed by the deceased.”).

[13] 1 Restatement (Third) of Property: Wills and Other Donative Transfers §4.1 cmt. j (Am. L. Inst. 1998).

[14] Janzen v. Claybrook, 1966 OK 200, ¶11. Cf. In re Estate of Speers, 2008 OK 16, ¶9 (noting that the “burden of proof in the trial of a contest of the probate of a will is upon the proponents of the will”).

[15] Cf. Broadway Clinic v. Liberty Mut. Ins. Co., 2006 OK 29, ¶18, 139 P.3d 873 (quoting Black’s Law Dictionary 1087 (8th ed. 2004)) (citing U.S. v. One TRW, Model M14, 7.62 Caliber Rifle, 441 F.3d 416, 422 (6th Cir. 2006)).

[16] Day v. Williams, 1938 OK 554, ¶33 (emphasis added).

[17] See 58 O.S. §43 (requiring proponent of will to produce and examine the subscribing witnesses, or explain their absence, in the event of a will contest).

[18] Huff, supra note 7, §8.8, at 124 (noting that “no certain number of witnesses are required” to prove a will’s existence).

[19] 1938 OK 554.

[20] Day v. Williams, 1938 OK 554, ¶26 (emphasis added).

[21] Day v. Williams, 1938 OK 554, ¶33 (emphasis added).

[22] See, e.g., In re Estate of Speers, 2008 OK 16, ¶12 (“The burden of proof rests upon the proponent of the will to establish by preponderance of evidence that the will was executed and published according to law.”); In re Estate of Bogan, 1975 OK 134, ¶14 (same).

[23] Day v. Williams, 1938 OK 554, ¶20 (emphasis added).

[24] Day v. Williams, 1938 OK 554, ¶20 (emphasis added).

[25] Day v. Williams, 1938 OK 554, ¶21.

[26] Day v. Williams, 1938 OK 554, ¶34.

[27] In re Estate of Wilson, 1994 OK CIV APP 31, ¶8 (citing Day v. Williams) (emphasis added).

[28] Roberts v. McCrory, 693 F. Supp. 998, 1000 (W.D. Okla. 1987) (emphasis added).

[29] Janzen v. Claybrook, 1966 OK 200, ¶23 (internal citations omitted). But see In re Estate of Modde, 323 N.W.2d 895, 898 (S.D. 1982) (“The court [in Day v. Williams, interpreting a statute identical to one in South Dakota] concluded that sufficient testimony to convince the court of the fact of execution of the will or of its existence at the time of the testator's death is all that is required.”).

[30] See, e.g., Dan v. Dan, 288 P.3d 480 (Alaska 2012); In re Estate of Crozier, 232 N.W.2d 554, 559 (Iowa 1975); In re Estate of Richard, 556 A.2d 1091 (Me. 1989); In re Estate of Mecello, 633 N.W.2d 892 (Neb. 2001); In re Davis’ Will, 11 A.2d 233, 236 (N.J. 1940); In re Will of McCauley, 565 S.E.2d 88 (N.C. 2002); Briscoe v. Schneider (In re Estate of Penne), 775 P.2d 925, 927 (Or. Ct. App. 1989). But see In re Estate of Glover, 744 S.W.2d 939 (Tex. 1988) (holding the presumption is rebuttable by a preponderance of the evidence); In re Estate of King, 817 A.2d 297 (N.H. 2003) (same); 1 Restatement (Third) of Property: Wills and Other Donative Transfers §4.1 cmt. j (Am. L. Inst. 1999) (same).

[31] Direct evidence (often used interchangeably with original evidence) means “evidence that proves a fact without any inference or presumption.” See Brian A. Garner, Garner’s Dictionary of Legal Usage, 278-79 (3d ed. 2011). Circumstantial evidence (less commonly termed indirect evidence) is “evidence from which the fact-finder may infer the existence of a fact in issue, but that does not directly prove the existence of the fact.” Id. at 157.

[32] Note, “Rebutting the Presumption of Revocation of Lost or Destroyed Wills,” 24 Wash. U. L. Quart. 105, 114-15 (1938) (“[C]lear proof of accidental destruction by the testator is a circumstance sufficient to rebut the presumption of revocation ... [as is] accidental destruction by a person other than the testator.”).

[33] In re Estate of Shaw, 1977 OK 237, ¶18.

[34] See, e.g., In re Estate of Wilson, 1994 OK CIV APP 31 (not questioning the existence of a lost will where testatrix had given the will to attorney and “never had it in her possession after that”).

[35] 84 O.S. §101 (emphasis added).

[36] Nickell v. Nickell, 1952 OK 446, ¶14. See also 79 Am Jur 2d Wills §624, at 718 (1975) (noting the prevailing rule is that “declarations of the testator are admissible in evidence to rebut the presumption of revocation by destruction of the document, which arises from inability to find the will after the testator’s death”).

[37] Johnson v. Bruner, 1950 OK 139, ¶18.

[38] See, e.g., In re Estate of Rush, 38 Misc. 2d 45 (Sur. Ct. N.Y. County 1962) (holding presumption of revocation is overcome where decedent acts in manner inconsistent with revocation, i.e., searching for will just prior to death).

[39] See In re Estate of Modde, 323 N.W.2d 895, 899 (S.D. 1982) (citing In re Estate of Markofske, 178 N.W.2d 9 (1970) (“We also find the absence of any statement by decedent of any intent or desire to revoke or change the will to be significant.”).

[40] In re Estate of Herbert, 89 Misc. 2d 340 (N.Y. Surr. Ct. 1977).

[41] Davis v. Davis & Davis, [1823] 2 Add. Eccl. 223, 227.

[42] Levitz v. Hillel Lodge Long Term Care Foundation, 2017 ONSC 6253, at para. 19 (CanLII).

[43] 2 James Beresford Atlay, The Victorian Chancellors 26 (1908).

[44] Sugden v. Lord St. Leonards, [1876] 1 P.D. 154, 218 (EWCA).

[45] Sugden v. Lord St. Leonards, [1876] 1 P.D. 154, 219 (EWCA).

[46] John E. Walsh Jr., “Lost Wills and the Register of Wills,” 111 U. Penn. L. Rev. 450, 455 (1963) (“Courts will not ... presume fraudulent destruction; on the contrary, the innocence of third persons is assumed.”).

[47] 79 Am Jur 2d Wills §628, at 722 (1975).

[48] Davis v. Davis & Davis, [1823] 2 Add. Eccl. 223, 227 (“It also appears, that the trunk was sometimes left open ... and was accessible to other persons in the house. The codicil therefore might have been taken out, accidentally, or otherwise, neither by, nor with the privity of, the deceased.”).

[49] Feder v. Nation of Israel, 830 S.W.2d 449, 452 (Mo. Ct. App. 1992).

[50] Morton v Christian, 2014 BCSC 1303, para. 52 (Can.). See also Welch v. Phillips, [1836] 12 Eng. Rep. 828, 829 (stating that “it is highly reasonable to suppose that an instrument of so much importance would be carefully preserved, by a person of ordinary caution, in some place of safety and would not be either lost or stolen”).

[51] In re Estate of Hartman, 563 P.2d 569, 571 (Mont. 1977) (quoting Colvin v. Fraser, [1829] 162 Eng. Rep. 856, 877).

[52] See generally Barry Cushman, “The Decline of Revocation by Physical Act,” 54 Real Prop., Tr. & Est. L.J. 243 (2019). See also Uniform Trust Code §602 cmt. (stating that while “a physical act ... might also demonstrate the necessary intent [to revoke a trust] ... [t]hese less formal methods, because they provide less reliable indicia of intent, will often be insufficient”).


Originally published in the Oklahoma Bar JournalOBJ 95 No. 9 (November 2024)

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.