## Facts

- In January 1982, Harry Wayne Conley executed a will leaving his entire estate to his sister, Margaret York.
- Conley kept the original will in a filing box at his home.
- The attorney who prepared the will kept a conformed copy in the attorney’s office.
- Conley died in 2001, and the original will could not be found after his death.
- Conley’s nephews, Albert Conley and Colin Conley, petitioned to administer the estate by intestacy and were appointed co-personal representatives.
- York petitioned to establish testacy and to admit the conformed copy of the 1982 will to probate.
- The district court concluded North Dakota did not recognize a presumption that a missing will was revoked and admitted the conformed copy to probate.
- The nephews appealed, arguing that a missing original will last known to be in the testator’s possession should be presumed revoked and that York had not met the burden to overcome that presumption.

## Issues

1. Does North Dakota recognize the common-law presumption that when an original will last known to be in the testator’s possession cannot be found at death, the will is presumed destroyed by the testator with intent to revoke (*animo revocandi*)?
2. If that presumption applies, what party bears the burden to rebut it, and what is the standard of proof?
3. Did the district court err by admitting a conformed copy to probate without applying the presumption and requiring York to rebut it?

## Decision

- The Supreme Court of North Dakota held that North Dakota recognizes the common-law presumption that a will last known to be in the testator’s possession and not found at death is presumed revoked by destruction with intent to revoke (*animo revocandi*).
- The court held the proponent of a missing will bears the burden to rebut the presumption by a preponderance of the evidence, showing it is more likely than not that the testator did not revoke the will.
- The court rejected the argument that repeal of an earlier statute addressing lost wills eliminated the common-law presumption; repeal of that statute did not amount to an express rejection of the common law rule.
- Because the district court ruled no presumption existed and admitted the conformed copy without requiring York to overcome the presumption, the Supreme Court reversed.
- The case was remanded for further proceedings applying the presumption and the correct allocation and standard of proof.

## Legal Principles

- North Dakota incorporates applicable common law unless it is inconsistent with state statutes or has been clearly displaced.
- When an original will was last known to be in the testator’s possession and cannot be located after death, the law presumes the testator destroyed the will with intent to revoke (*animo revocandi*).
- The proponent seeking probate of a lost or missing will must overcome the presumption of revocation by a preponderance of the evidence.
- Repeal of a statute addressing proof of lost wills does not, without clear legislative action, eliminate the common-law presumption of revocation for a missing will.

## Conclusion

In *In re Estate of Conley*, the North Dakota Supreme Court reversed an order admitting a conformed copy of a missing will because the district court failed to apply the common-law presumption that an original will last in the testator’s possession and missing at death was revoked. The court held the will’s proponent must rebut that presumption by a preponderance of the evidence and remanded for the district court to decide testacy under that rule.


In re Estate of Conley, 753 N.W.2d 384 (2008)