## Facts

- Julia Kuhn executed a will in 1963 after her husband’s death, leaving her entire estate to her niece, Helen Bakos, with whom she was very close.
- Kuhn had an adopted daughter, Elizabeth Vargo, who was Kuhn’s potential intestate heir if there were no valid will.
- Vargo and Kuhn had no contact for roughly 21 years before Kuhn’s death, though there was no evidence of animosity between them.
- After Kuhn died, Bakos located the will among Kuhn’s other important papers.
- The will had been torn into two pieces from top to bottom, directly through Kuhn’s signature.
- Kuhn’s estate attorney testified that Kuhn never told him she intended to revoke or change her will and never told him she had destroyed it.
- No evidence established when the will was torn, who tore it, or Kuhn’s intent at the time it was torn.
- Bakos offered the torn document for probate, and the probate court admitted it, finding the presumption of revocation had been rebutted.
- Vargo appealed the order admitting the torn will to probate, arguing that tearing the will constituted revocation by physical act.

## Issues

1. Whether there was sufficient evidence to rebut the presumption that a will found torn in the decedent’s possession was torn by the decedent with intent to revoke it under Florida law.

## Decision

- The appellate court reversed the order admitting the torn will to probate.
- The court held there was a total absence of substantial evidence to support the trial court’s conclusion that the presumption of revocation had been rebutted.
- The court reasoned that, without evidence about when the tearing occurred or Kuhn’s state of mind at or near that time, the circumstances relied on by the proponent (retention of the pieces, family relationships, and the attorney’s testimony) were too uncertain to overcome the presumption.

## Legal Principles

- Under Florida law (then Fla. Stat. § 731.14(1)), a will may be revoked by a physical act such as tearing, when done with intent and for the purpose of revocation.
- When a will is found in a torn or mutilated condition, a presumption arises that the testator tore or mutilated it with intent to revoke.
- The presumption of revocation may be rebutted, but it requires substantial evidence showing the testator did not intend revocation at the time of the physical act.
- Evidence that is equally consistent with revocation (e.g., keeping the torn pieces) does not, standing alone, rebut the presumption.
- Appellate courts generally defer to probate fact-finding, but reversal is proper when the finding that a presumption was overcome is not supported by substantial evidence.

## Conclusion

In *In re Estate of Kuhn*, the Florida Third District reversed the probate court’s admission of a will that was torn through the testatrix’s signature because the law presumes a torn will found among the decedent’s papers was revoked, and the proponent offered no substantial evidence about the timing of the tearing or the decedent’s intent at the time to defeat that presumption.


In re Estate of Kuhn, 286 So. 2d 276 (1973)