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Probate of Lost Will

Taylor v. Hoehn, [Ms. 1180375, Jan. 17, 2020] __ So. 3d __ (Ala. 2020). The Court (Wise, J.; Parker, C.J., and Bolin, Sellers, and Stewart, JJ., concur) unanimously affirms the Baldwin Circuit Court’s judgment on partial findings in a bench trial denying a petition to probate a lost will of John Hoehn. The Court applied settled law that

The elements necessary to “prove” a “lost” or “destroyed” will are set forth in Tyson v. Tyson, 521 So. 2d 956 (1988):

1. The existence of a will – an instrument in writing, signed by the testator or some person in his presence, and by his direction, and attested by at least two witnesses, who must subscribe their names thereto in the presence of the testator.

2. The loss or destruction of the instrument.

3. The nonrevocation of the instrument by the testator.

4. The contents of the will in substance and effect.

Ms. *13 (internal quotation marks omitted).

In affirming, the Court noted that “Moore, [the attorney who drafted the will] could not support Roman’s [the decedent’s daughter’s] testimony because he did not recall the execution of the will and because he did not have an executed copy of the will in his office files. Finally, the circuit court found that Roman was not credible as to the issue of whether Hoehn signed the will. Therefore, the circuit court could have reasonably concluded that Hoehn did not establish that Hoehn ever properly executed the purportedly lost will.” Ms. *26-27.

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