Shellie G. Spencer III ("Shellie III") appeals from an order of the Mobile Probate Court admitting a copy of his father's will to probate. We affirm.
Facts and Procedural History
Shellie G. Spencer, Jr. ("Spencer"), died on March 9, 2016, at the age of 96. Spencer had three adult children who survived him: Clyde Spencer, Shellie III, and Darrell C. Spencer. On April 18, 2016, Darrell ("the proponent") filed a petition to probate a copy of Spencer's will, which favored the proponеnt. The proponent represented that the original of the will, dated March 23, 2010, could not be found but that it remained effective and had not been destroyed or otherwise revoked by Spencer. On June 20, 2016, Shellie III and Clyde contеsted the will, arguing that it was the product of undue influence and coercion exerted upon Spencer by the proponent; another issue was whether the original of the will was merely lost and therefore still effective оr whether the will had been revoked. The case proceeded to a bench trial.
On July 25, 2017, the probate court entered an order that contained detailed findings of fact and conclusions of law. Specifically, thе probate court found no undue influence or coercion on the part of the proponent. The probate court also noted that, in Alabama, when a will remains in the possession of the testator and is not found at the testator's death, the legal presumption is that the testator revoked the will. In this case, however, the probate court determined that, although the original of Spencer's will had not been found, the totality of the еvidence presented by the proponent was substantive enough to rebut the presumption that Spencer had revoked it. Accordingly, the probate court admitted the copy of Spencer's will to probate. Shellie III appealed.
Standard of Review
Because the probate court conducted a bench trial in this case at which oral testimony was given, the ore tenus standard of review applies: " 'When a judge in a nonjury case hears oral testimony, a judgment based on findings of fact based on that testimony will be presumed correct and will not be disturbed on appeal except for a plain and palpable error.' " Smith v. Muchia,
" 'The ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses.' Hall v. Mazzone,, 410 (Ala. 1986). The rule applies to 'disputed issues of fact,' whether the dispute is based entirely upon oral testimony or upon a combination of oral 486 So.2d 408 testimony and documentary evidence. Born v. Clark, , 672 (Ala. 1995). The ore tenus standard of review, succinctly stated, is as follows: 662 So.2d 669
" '[W]here the evidence has been [presented] ore tenus, a presumption of correctness attends the trial court's conclusion on issues of fact, and this Court will not disturb the triаl court's conclusion unless it is clearly erroneous and against the great weight of the evidence, but will affirm the judgment if, under any reasonable aspect, it is supported by credible evidence.' "
Reed v. Board of Trs. for Alabama State Univ.,
Discussion
At the outset, we note that the evidence was undisputed that in 2006 W. Gregory Hughes, an attorney, prepared a will for Spencer; that in December 2010, following the death of one of Spencer's children, Hughes prepared a new will (hereinafter "the 2010 will") for Spеncer; and that in 2014, approximately two years before Spencer's death, Spencer again met with Hughes, but Hughes undertook no work for Spencer because he could not discern what Spencer wanted Hughes to do and Spencer was "profoundly hard of hearing."
On appeal, Shellie III challenges only that portion of the probate court's order finding that Spencer had not revoked the 2010 will. In Barksdale v. Pendergrass,
"In a proceeding to probate an alleged lost or destroyed will, the burden is on the proponent to establish, to the reasonable satisfaction of the judge or jury trying the facts:
"(1) The existence of a will-an instrument in writing, signed by the testator or some person in his presence, and by his direction, and attested by at least two witnesses, who must subscribe their names thereto in the presence of the testator.
"(2) The loss or destruction of the instrument.
"(3) The nonrevocation of the instrument by the testator.
"(4) The contents of the will in substance and effect."
(Citations omitted; emphasis added.) Concerning the "nonrevocation of the instrument by the testator," this Court explained:
"When the will is shown to have been in the possession of the testator, and is not found at his death, the presumption arisеs that he destroyed it for the purpose of revocation; but the presumption may be rebutted, and the burden of rebutting it is on the proponent."
Shellie III asserts that a reasonable presumption in this case would be that Spеncer visited Hughes's office in 2014 for the purpose of executing a new will, having already destroyed or revoked the 2010 will. Accordingly, Shellie III argues that the proponent failed to produce "substantial evidence" to rebut the presumption that Spencer had revoked the 2010 will. However, as this Court stated in Barksdale, to rebut the presumption, the proponent need only establish to the satisfaction of the trier of fact that the will was not revoked. The probate court noted in its order that the evidence was undisputed that Spencer was "a strong-willed person"; that he "made a point of 'taking care of his business' "; that he kept all of his important papers in a specifiс drawer in a chest of drawers in his bedroom; and that he kept his bedroom door locked when he was
As indicated, the probate court concluded that, based on the totality of the evidence, the proponent had produced sufficient evidence to rebut the presumption that Spencer had revoked the 2010 will. We agree; we note that, among other things, the probate court could have reasonably inferred from the testimony presented that Spencer had not revoked the 2010 will because Spencer also had а life-insurance policy that he kept in the same chest of drawers, and that policy also was not found. For the foregoing reasons, we conclude that the evidence presented by the proponent suppоrts the probate court's conclusion that Spencer did not revoke the 2010 will.
Shellie III, relying on a portion of the probate court's order emphasized in an excerpt quoted below, also argues that the probаte court committed reversible error by placing the burden of proof on Shellie III to show that the 2010 will had been revoked. In support of this argument, Shellie III cites Lovell v. Lovell,
"In Alabama, when a last will and testament remains in the possession of a testator and is not found at his death, the legal, evidential presumption is thаt the testator destroyed it, animo revocandi, until the contrary is shown. See Allen v. Scruggs,, 674[, 190 Ala. 654 , 308] (1914). This presumption is rebuttable. The Court is of the opinion and therefore concludes that the totality of the evidence presented by the Proponent is substantive enough in nature to rebut the presumption of revоcation animo revocandi. The Court further notes that [Shellie III] offered no evidence in support of the application of this evidentiary presumption." 67 So. 301
(Emphasis added.) In other words, the proponent met his burden of rebutting the presumption that the 2010 will had been revoked and establishing to the reasonable satisfaction of the probate court that the 2010 will had not been revoked. The probate court's notation in its order concerning Shellie III's failurе to offer any evidence "in support of the application of [that] evidentiary presumption" does not amount to reversible error.
Conclusion
After reviewing the record under the ore tenus standard of review and applying the prevailing substantive legal principles, we conclude that the judgment of the probate court is supported by the evidence. We therefore affirm the judgment.
AFFIRMED.
Stuart, C.J., and Bolin, Shaw, and Wise, JJ., concur.