WILLS - INTERPRETATION OF "EXISTENCE" AS USED IN STATUTES PROVIDING FOR PROBATE OF LOST OR DESTROYED WILLS

Authors

Edward P. Dwyer, Jr., University of Michigan Law SchoolFollow

Abstract

Testator, about to undergo a serious operation, executed a will leaving $5,000 to his fiancée and the balance of his estate to his brother Louis. Three days later, after the operation had been performed and when testator was apparently on the road to recovery, he informed a lawyer that he desired to give his fiancée a check for $5,000 at once in lieu of the bequest to her in the will, and desired the rest of his estate to go to Louis. Testator mistakenly told the lawyer he had no other relatives. The lawyer then advised him to have the will destroyed, since the property would all go to Louis by intestacy, and thus avoid the risk of the fiancée claiming an additional $5,000 under the will. Testator directed the lawyer to destroy the will and he did so. Upon testator's death three days later, it was disclosed that he had several brothers and sisters in Belgium. Louis petitioned to have the destroyed will admitted to probate, alleging that testator had destroyed it only on the condition that Louis take all by intestacy, and invoking the doctrine of dependent relative revocation. Held, under the Washington statute, the will was inadmissible as a lost or destroyed will since it was not "in existence at the time of the death of the testator" or "shown to have been fraudulently destroyed" in his lifetime. The court interpreted "existence" to mean physical existence at the time of the testator's death. In re Kerckhofs Estate, (Wash. 1942) 125 P. (2d) 284.

Recommended Citation

Edward P. Dwyer, Jr., WILLS - INTERPRETATION OF "EXISTENCE" AS USED IN STATUTES PROVIDING FOR PROBATE OF LOST OR DESTROYED WILLS, 41 Mich. L. Rev. 358 (1942).
Available at: https://repository.law.umich.edu/mlr/vol41/iss2/24