Usual Presumption that Will was Revoked When it Can’t Be Found Did Not Apply

A Utah Appellate court has affirmed atrial court ruling where the court admitted an unsigned, undated, unwitnessedcopy of a women’s will. The women left behind three brothers as potential heirs.Brother #1 claimed that his sister executed a valid will. Brother #2 contestedthe will claiming his sister did not leave a will behind. Brother #3 claimsthat he found a will subsequent to his sister’s death. He also remembers that hissister and two witnesses signed it. The attorney that drafted the women’s will testified.He could not remember the will being executed and only had an unsigned copy ofthe will produced during court. However, the attorney explained it was commonpractice to execute the will and that he believed it was executed because theoriginal would still be in the client file in addition to the copy.

The appeal was based on the statutoryrequirements of lost wills. Lost wills require at least one attesting witness’stestimony. Moreover, the appellant claimed he was denied due process fromlowering his hearing aid volume after the clerk asked him to because of theinterference with the microphone in court. As a result, he could not hear andwas subsequently denied confrontation of the witnesses. Moreover, the appellantclaims the judge was biased and should have recused himself. The judge was theappellee’s lawyer’s partner during the alleged execution of the will.

The appellate court accepted the lawyer’stestimony and denies the hearing aid argument. Additionally, the court did notbelieve it was appropriate to raise the issue of the judge recusing himself forthe first time in an appeal. 

See John T. Brooks Where There’s a Will, There’s a Way, Wealth Management, Jul. 27, 2013.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.