Reversal: Probate court must consider ex’s purported will

The ex-wife of a man who died in June 2018 will be permitted to enter into probate court a document she contends is her ex-husband’s will, the Indiana Court of Appeals ruled Monday, reversing a trial court order that determined the man had died without leaving a will.

Christal Trowbridge claimed her late ex-husband, Everett Trowbridge, left her a handwritten last will and testament form will that was signed, written and notarized, and which included designation of a combination to a safe. Christal claimed the will entitled her to a 25 percent share of a Chase Bank retirement plan, as well as remaining property — a residence, personal property, a vehicle and an Edward Jones retirement plan.

But Michael Trowbridge — Everett’s brother and personal representative for the estate — objected to the purported will, and after a hearing, Clark Circuit Judge Andrew Adams’ court issued an order denying probate of the will and declaring that Everett died intestate.

But the COA reversed in https://www.in.gov/judiciary/opinions/pdf/07151902lmb.pdf https://www.in.gov/judiciary/opinions/pdf/07151902lmb.pdf, 19A-ES-265, noting the trial court’s findings were contradictory, in conflict with testimony at the hearing, and misplaced the burden of proof, among other things.

Analyzing the trial court’s findings, the panel wrote, “The language of the first sentence of Paragraph 10, referencing a purported agreement that the Decedent had retained possession of his will, is facially inconsistent with the language of Paragraph 12, recognizing that (Christal) Trowbridge claimed at trial to have the original. And the parties in fact contested whether the Decedent had kept his will in his safe or instead tendered the original document to Trowbridge. It was central to their controversy.”

Further, “(t)he presumption of destruction with intent to revoke would be operable only if (1) the testator retained possession or control of a will and (2) the will was not found at his death,” Judge L. Mark Bailey wrote for the panel, citing Estate of Fowler v. Perry, 681 N.E.2d 739, 741 (Ind. Ct. App. 1997). “The probate court found the inscription of the safe combination on the proffered will to be ‘support’ for the Decedent having possession or control, but the court did not make a factual finding that he had done so.”

But even if the probate court treated the will Christal offered as a copy, Bailey noted, the burden to prove a will was revoked lies with the contesting party. 

“The outcome here was driven by applying a presumption that a will in the testator’s possession later found missing was missing because the testator destroyed it with intent to revoke,” the panel held. “But there must be a predicate finding of possession for something to be missing from one’s possession. Notwithstanding deficiency in this regard, the probate court afforded the Estate the presumption that the original was destroyed with intent to revoke. Had the presumption been supported by the evidence, it would have shifted to (Christal) Trowbridge the burden of going forward with evidence to rebut the presumption.

“The probate court summarily concluded that (Christal) Trowbridge failed to rebut the presumption with admissible and relevant evidence. By statute, the Estate, as contestor of the proffered will, bore the ultimate burden of proof. Moreover, the Estate was not entitled to a presumption in its favor without predicate factual findings. Because the probate court misplaced the burden of proof, its decision is contrary to law.”

The matter was remanded for proceedings.