## Facts

- Daisy Virginia Speer executed a will in November 1989 naming Katherine Crapps Harrison as the principal beneficiary.
- Speer’s attorney retained the original will; Harrison received a duplicate original.
- On March 4, 1991, Speer telephoned her attorney stating she wanted to revoke her will.
- The attorney (or his secretary) tore up the original will outside Speer’s presence and mailed the torn pieces to Speer with a letter stating the will had been revoked and she was “without a will.”
- Speer died on September 3, 1991; the attorney’s letter was found among her effects, but the torn pieces were not.
- The probate court issued letters of administration to Mae S. Bird as administratrix, treating the estate as intestate.
- Harrison offered her duplicate original for probate; Bird contested, asserting revocation.
- The circuit court ruled the attorney’s destruction was not a valid statutory revocation because it was not done in Speer’s presence, but held a presumption of revocation arose from the missing torn pieces and was not rebutted; it confirmed intestate administration.
- Harrison appealed.

## Issues

1. Whether a will is validly revoked when a third person destroys it at the testator’s direction but not in the testator’s presence under Ala. Code § 43-8-136(b).
2. Whether a rebuttable presumption of revocation arises when a will (or its fragments) last known to be in the testator’s possession is not found at death, and whether that presumption applies to duplicate originals held by others.
3. What evidentiary showing is required to rebut the presumption and admit a duplicate original to probate.

## Decision

- The Supreme Court of Alabama affirmed the judgment administering the estate as intestate and confirming Bird’s letters of administration.
- The court held the attorney’s destruction of the original was not a valid statutory revocation because it did not occur in Speer’s presence.
- The court held a rebuttable presumption arose that Speer revoked the will by destroying or disposing of the torn pieces after receiving them.
- The presumption of revocation extended to all duplicate originals, including the duplicate held by Harrison.
- Harrison failed to rebut the presumption by the required evidentiary standard.

## Legal Principles

- Revocation by physical act under Ala. Code § 43-8-136(b) is effective only if performed by the testator, or if performed by another person, only when done in the testator’s presence and at the testator’s direction; noncompliance renders the act ineffective and not subject to ratification.
- If a will (or its remnants) was last known to be in the testator’s possession and is not found among the testator’s effects at death, the law presumes the testator destroyed it with intent to revoke; the presumption is rebuttable.
- When revocation by physical act is presumed, the presumption applies to the will and all duplicate originals, even if a duplicate exists in the possession of another person.
- The proponent of a missing will (or a duplicate) bears the burden to rebut the presumption of revocation by clear and convincing evidence.

## Conclusion

Because third-party destruction outside Speer’s presence did not satisfy the statutory method of revocation, the case turned on the missing fragments last known to be in Speer’s possession; their absence at death created a presumption that Speer revoked the will, which also defeated probate of Harrison’s duplicate original absent clear and convincing proof to the contrary.


Harrison v. Bird, 621 So. 2d 972 (Ala. 1993)