## Facts

- Anna Creech executed a will in 1992 making specific bequests, leaving the residue to surviving nieces and nephews, and naming Cleveland Mitchell as personal representative with Lettie Gaskins as alternate.
- Creech executed a codicil in 1995 revoking and replacing several will provisions, including: (1) changing a specific bequest of a china closet, (2) devising her home to Bettye Ward Garner and Bobbie Jean Ward-Allen as tenants in common, and (3) substituting Ward-Allen as alternate personal representative.
- Creech died in 2001.
- In 2006, Ward-Allen petitioned for standard probate and filed the original 1992 will and a copy (not the original) of the 1995 codicil, seeking appointment consistent with the codicil.
- Gaskins and Jessie Marie Davis objected to admitting the codicil and to Ward-Allen’s petition, arguing that only a copy of the codicil was produced.
- After a hearing, the probate court sustained the objections, refused to admit the codicil because of uncertainty about the missing original, denied Ward-Allen’s petition, admitted only the 1992 will, and appointed Gaskins as personal representative (after Mitchell renounced).

## Issues

1. Under District of Columbia probate law, when may a copy of a missing codicil be admitted to probate despite the presumption that a missing original was destroyed by the testator with intent to revoke?
2. Did the probate court apply an incorrect and overly demanding standard by requiring the proponent to prove what happened to the original codicil?

## Decision

- The District of Columbia Court of Appeals reversed the order sustaining objections to the codicil and remanded.
- The court held that the probate court applied an unduly stringent approach by effectively requiring proof of the codicil’s precise fate.
- The court determined the record contained sufficient evidence of proper execution and contents, and evidence tending to rebut the presumption of revocation, to require further proceedings under the correct standard.

## Legal Principles

- If an original will or codicil last known to be in the testator’s possession cannot be found at death, a rebuttable presumption arises that the testator destroyed it with intent to revoke.
- The presumption may be rebutted by clear and convincing evidence showing circumstances inconsistent with intentional revocation (including evidence suggesting the document was lost or unavailable without revocatory intent).
- The proponent is not required to account with certainty for what happened to the missing original; the inquiry is whether the totality of the evidence overcomes the inference of intentional destruction.
- When the presumption is rebutted and the instrument’s contents and due execution are established, a copy may be admitted to probate.

## Conclusion

The court required probate courts to evaluate missing-instrument cases by asking whether the evidence rebuts the presumption of revocation, not by demanding proof of the document’s exact disappearance, and it remanded for further proceedings on admitting the copied codicil under that standard.


Ward-Allen v. Gaskins, 989 A.2d 185 (D.C. 2010)