Whatley v. Estate of McDougal
2013 Ark. App. 709
| Ark. Ct. App. | 2013Background
- Bettye McDougal executed a will and trust on April 6, 2007 leaving most assets to her brother Bobby Long, excluding her son Todd Whatley; originals were taken when she left the attorney's office and were not found after her death in February 2011.
- Proponent Bobby Long filed a copy of the 2007 will for probate; Whatley objected, asserting the original was intentionally destroyed by McDougal and asking the court to declare intestacy and appoint a different executor.
- At trial Whatley conceded proper execution of the 2007 will but argued the proponent failed to prove the original existed at the time of death, so the statutory presumption of revocation by destruction applied.
- Witnesses for the estate testified McDougal repeatedly said her affairs were "all handled," that paperwork was in her safe or at her attorney’s office, and that she intended to disinherit her son; friends and family who cared for her in final days corroborated these statements.
- The circuit court found the proponent’s witnesses credible, concluded the presumption of revocation was rebutted (the original was in existence at death but lost), admitted the copy to probate, and appointed a neutral corporate executor; the Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a copy of a will may be probated when the original is missing and presumed destroyed | Whatley: proponent produced no evidence the original existed at death; presumption of revocation stands and copy should not be probated | Long/proponent: circumstantial evidence (statements, safe access, witnesses) rebuts presumption and shows will existed at death despite being lost | Court: Affirmed — circumstantial testimony and circumstances rebutted presumption; copy probated |
| Burden to rebut presumption that an unproduced will was revoked by destruction | Whatley: proponent failed the required preponderance showing that decedent did not revoke | Long: proponent met preponderance via multiple witnesses and facts about access and decedent’s statements | Court: Proponent met preponderance; trial court credited witnesses and factual context |
| Whether trial court erred in credibility findings about witnesses who said paperwork was "in order" | Whatley: such statements are equally consistent with prior destruction or revocation | Long: consistent, contemporaneous assurances and lack of access make revocation unlikely | Court: Appellate court defers to trial court credibility determinations; no clear error |
| Whether court needed to determine the physical location or fate of the original will | Whatley: location uncertainty undermines proof of existence at death | Long: law requires only a finding that will was not revoked, not proof of where it went | Court: Agreed with proponent — court need not determine what became of the will; only that it was not revoked |
Key Cases Cited
- Abdin v. Abdin, 94 Ark. App. 12, 223 S.W.3d 60 (Ark. Ct. App.) (lost-will statute requires proving execution and that will existed at death or was fraudulently destroyed)
- Wharton v. Moss, 267 Ark. 723, 594 S.W.2d 856 (Ark. 1980) (presumption that a will in testator’s custody and not found after death was revoked by destruction)
- Rose v. Hunnicutt, 166 Ark. 134, 265 S.W. 651 (Ark. 1924) (same presumption regarding unproduced wills)
- Thomas v. Thomas, 30 Ark. App. 152, 784 S.W.2d 173 (Ark. Ct. App.) (proponent bears burden to prove will not revoked; court need not determine what became of will)
- Remington v. Roberson, 81 Ark. App. 36, 98 S.W.3d 44 (Ark. Ct. App.) (probate factual findings reviewed for clear error with deference to credibility determinations)
- Garrett v. Butler, 229 Ark. 653, 317 S.W.2d 283 (Ark. 1958) (circumstantial evidence and attendant circumstances can overcome presumption of revocation; trial court need only find will not revoked)
- Bradway v. Thompson, 139 Ark. 542, 214 S.W. 27 (Ark. 1919) (articulates the trial judge’s task in lost-will cases — to find whether the will was revoked, not to discover its fate)