In Re Estate of Ruby C. Roggli, M2016-02562-COA-R3-CV

Ruby C. Roggli executed a will on February 27, 2007, leaving real property to her husband’s nephews (Appellees) and most personalty to her sisters/nieces (Appellants).
The original will was kept in a safe in her home; it was last seen around 2012 when Decedent showed it to her sister, Lanelle Harrison, and returned it to the safe.
Decedent’s health and mental capacity declined after 2012; she moved to a nursing home in February 2015 and a conservator was appointed in May 2015. She died July 15, 2015.
After an exhaustive search, the original will could not be located following Decedent’s death; nephews (Appellees) petitioned to establish a lost will; sisters/nieces (Appellants) opposed.
Trial court found (1) the will existed when Decedent lost testamentary capacity, and (2) Decedent did not have exclusive control of the safe/will in her diminished-capacity period; the court established the 2007 will as the Decedent’s last will.
Appellants appealed, raising challenges to the legal standard applied, the burden of proof, and reliance on the will’s contents as evidence of intent.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether proponents met the heavy burden to establish a lost will (rebut presumption of revocation)	Appellees: Clear, cogent, convincing circumstantial evidence shows the will was not revoked and was lost after Decedent lost capacity	Appellants: Presumption of revocation stands; proponents failed to prove non-revocation by clear, cogent, convincing evidence	Court: Held for Appellees — evidence was clear, cogent, and convincing; presumption rebutted
Whether Decedent retained testamentary capacity after the will was last seen	Appellees: Decedent lost capacity after 2012 and therefore could not have revoked the will	Appellants: Decedent lived at home until 2015 and no conservator until May 2015, so she retained capacity to revoke	Court: Held Appellees — testimony showed diminished capacity from ~2012 onward; Decedent lacked capacity to revoke
Whether Decedent had exclusive custody/control of the will before death	Appellees: Safe-key location and home access were shared; many relatives accessed the house and safe during Decedent’s decline	Appellants: The will was in Decedent’s safe, implying exclusive possession and opportunity to revoke	Court: Held Appellees — multiple people had access to the safe; Decedent did not have exclusive control

Hickey v. Beeler, 171 S.W.2d 277 (Tenn. 1942) (presumption that a will traced into testator's possession and not found after death was revoked by the testator)
Sanders v. McClanahan, 442 S.W.2d 664 (Tenn. Ct. App. 1969) (burden rests on proponent to rebut presumption of revocation)
Shrum v. Powell, 604 S.W.2d 869 (Tenn. Ct. App. 1980) (same principle regarding burden to establish lost will)
In re Estate of Leath, 294 S.W.3d 571 (Tenn. Ct. App. 2008) (lost-will standard: may rebut presumption by circumstantial evidence such as lack of custody, loss of testamentary capacity)
In re Estate of West, 729 S.W.2d 676 (Tenn. Ct. App. 1987) (admissibility of testator declarations to rebut revocation presumption)
Estate of Acuff, 56 S.W.3d 527 (Tenn. Ct. App. 2001) (appellate standard: requires highly probable showing under clear, cogent, convincing evidence)
Roberts v. Roberts, 827 S.W.2d 788 (Tenn. Ct. App. 1991) (deference to trial court on witness credibility)