In a tort action to recover damages for the destruction of a will, plaintiff alleged that plaintiff's grandmother had executed a holographic will · prior to her death in October, 1939 by which she devised a farm to her two children for their lives, and at their death to plaintiff in fee; that the defendants, one of the two children and his wife, destroyed the will shortly before plaintiff's grandmother's death and while she was non compos mentis. The petition alleged that if the will had not been destroyed it would have been duly probated, but there was no allegation that this will was offered for probate, nor that it could not be probated. The ten year statutory period of limitation for the probate of a will had not expired. Held, the petition does not allege facts sufficient to constitute a tort cause of action, for a writing which has been duly executed as a will, and never revoked, becomes effectual as such on the death of the testator, and may be probated even though it has been lost ·or destroyed. Since no facts have been alleged from which it can be inferred that the will cannot be probated, a tort action cannot be maintained. Allen v. Lovell's Admx., (Ky. 1946) 197 S.W. (2d) 424.
Robert K. Eifler S.Ed.,
WILLS--TORTS TO EXPECTANCIES-WRONGFUL DESTRUCTION OF WILLS,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol45/iss7/16