258 So. 3d 326
Ala.2018Background
- Decedent Spencer (d. 2016) had a 2010 will prepared by attorney Hughes; original will could not be located after death.
- Darrell Spencer (proponent) petitioned to probate a copy of the 2010 will; proponent asserted the original was lost but not revoked.
- Shellie G. Spencer III (appellant) and Clyde contested probate, alleging undue influence and arguing the 2010 will was revoked (presumably when decedent visited Hughes in 2014).
- Bench trial produced testimony about Spencer’s habits (kept important papers locked in a bedroom drawer), the proponent’s frequent access and possession of a copy, and that a life‑insurance policy kept with the will also went missing.
- Probate court found no undue influence, held the proponent rebutted the presumption of revocation for a will last known in the testator’s possession, and admitted the copy to probate.
- Appellate court applied ore tenus review and affirmed the probate court’s ruling that the will was not revoked.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether proponent rebutted presumption that a will in testator’s possession and not found at death was revoked | Shellie III: 2014 visit to attorney supports inference Spencer revoked 2010 will; proponent failed to produce substantial evidence to rebut presumption | Proponent: evidence of Spencer’s habits, proponent’s access, missing insurance policy, and inability to access house after death rebut presumption of revocation | Court held proponent rebutted presumption; copy admitted to probate |
| Whether probate court improperly shifted burden to contestant | Shellie III: probate court’s order suggested contestant offered no evidence and improperly placed burden on contestant | Proponent: burden remained on proponent to rebut presumption; court merely noted contestant presented no evidence supporting revocation | Court found no reversible error; proponent met burden and notation about contestant’s lack of evidence did not shift legal burden |
| Whether undue influence invalidated will | Shellie III: will result of undue influence/coercion by proponent | Proponent: no undue influence; testamentary act valid | Probate court found no undue influence; affirmed on appeal |
| Proper standard of appellate review for bench trial findings | N/A (procedural) | N/A | Court applied ore tenus standard and declined to disturb factual findings supported by credible evidence |
Key Cases Cited
- Barksdale v. Pendergrass, 294 Ala. 526 (rebuttable presumption of revocation when will was in testator’s possession and not found at death)
- Smith v. Muchia, 854 So.2d 85 (ore tenus review presumption of correctness for bench trial findings)
- Reed v. Board of Trs. for Alabama State Univ., 778 So.2d 791 (statement of ore tenus standard)
- Lovell v. Lovell, 270 Ala. 720 (trial court error where jury instruction improperly shifted burden regarding revocation)
- Allen v. Scruggs, 190 Ala. 654 (statement of evidential presumption of revocation animo revocandi)