Dan v. Dan
2012 Alas. LEXIS 151
| Alaska | 2012Background
- Rose Anna Dan Waghiyi executed a will in 1987 and died June 2, 2008.
- After her death, Desiree sought informal probate of an unsigned revised will; Opal sought formal probate of the 1987 will.
- The revised will allegedly printed in 2007–2008 revoked the 1987 will, and Exhibit 1 purportedly copies that revision.
- Two witnessed copies of the revised will exist; no signed, executed copy was found after death.
- Witnesses described signing by Rose Anna, with Odinzoff and Marlin as witnesses; Desiree had copies of Exhibit 1.
- The superior court concluded the revised will revoked the 1987 will but destroyed evidence prevented locating a signed copy; court ruled intestate administration under Alaska law and remanded to resolve the proof standards and rebuttable presumption.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard of proof for lost/revoked will execution | Opal argues the court must apply clear and convincing evidence. | Estate contends the appropriate standard may vary and the court should resolve it on remand. | Remanded to determine if the revised will's contents and execution meet clear and convincing proof. |
| Whether the revised will properly revoked the 1987 will | Opal challenges that revocation was not proved. | Estate asserts the executed revised will extinguished the 1987 will. | Remanded to resolve whether revocation was properly proven. |
| Presumption of destruction rebuttable by other evidence | Opal argues evidence does not overcome presumption destruction. | Estate contends other evidence may rebut the destruction presumption. | Remanded to determine if the evidence overcomes the presumption. |
Key Cases Cited
- In re Protective Proceedings of W.A., 193 P.3d 743 (Alaska 2008) (quoting Casey v. Semco Energy; supports interpretation of revocation and burden)
- Vezey v. Green, 171 P.3d 1125 (Alaska 2007) (recognizes standards for revocation and will execution implications)
- Haven v. Wrinkle, 195 S.W.2d 787 (Tenn. 1946) (high burden to prove lost will execution to prevent fraud)
- Sanders v. McClanahan, 442 S.W.2d 664 (Tenn.App. 1969) (discusses stringent proof requirements for lost wills)
- In re Will of McCauley, 565 S.E.2d 88 (N.C. 2002) (authority on lost will execution standards)
- In re Estate of Conley, 753 N.W.2d 384 (N.D. 2008) (addressed lost will proof considerations)