Opinion
No. 85-1193
Decided July 23, 1986.
Probate — Wills — Clear and convincing evidence required to admit lost, spoliated, or destroyed will — Proceeding is special statutory proceeding in which hearsay rule is inapplicable — R.C. 2107.26.
O.Jur 3d Decedents' Estates §§ 1144, 1146.
1. The standard of proof necessary to admit a lost, spoliated, or destroyed will to probate is clear and convincing evidence that the loss, spoliation, or destruction of the original will occurred subsequent to the death of the testator or before the death of the testator, but without his knowledge. ( In re Estate of Tyler, 159 Ohio St. 492, and Cole v. McClure, 88 Ohio St. 1, followed.)
2. The proceeding to admit a lost, spoliated, or destroyed will is a special statutory proceeding in which the hearsay rule is inapplicable.
APPEAL from the Court of Appeals for Licking County.
This is an appeal from the probate court judgment refusing to admit to probate a will executed by Dr. Phillip R. Haynes on November 15, 1979. Dr. Haynes died in his home on November 17, 1983. Within a few hours thereafter the decedent's son, Phillip Ashley Haynes, appellant herein, and the decedent's brother, John C. Haynes, went to a branch of the Park National Bank in Newark, Ohio where they opened and removed the contents of the decedent's safety deposit box. Neither Phillip Ashley Haynes nor John Haynes told the officials at the bank that Dr. Haynes was dead.
According to Phillip Ashley Haynes, he recovered a photocopy of his father's will, dated November 15, 1979, from the safety deposit box. He claimed that the original was not there. It was alleged that shortly after opening the safety deposit box, Phillip Ashley Haynes and John Haynes went to the law office of David L. Martin and retained him for a fee of $30,000 to manage the estate of the decedent.
On December 16, 1983, John Haynes filed an application to probate an alleged will of the decedent dated June 17, 1983. The terms of that will were identical to the terms of the will executed on November 15, 1979 with the exception that the 1983 will named John Haynes as the executor and trustee for the estate. The November 15, 1979 will named three business associates of the decedent as co-executors and co-trustees of the estate. Also filed with the probate court on December 16, 1983 was an agreement signed by John Haynes and David Martin regarding attorney fees. This agreement was separate from and made no mention of the $30,000 retainer agreement.
On June 11, 1984, the probate court removed John Haynes from his position as executor of the estate, appraised to be worth over $1,000,000, pursuant to the result of a criminal investigation that determined that the will dated June 17, 1983 was a forgery. On June 8 and 11, 1984, the probate court held hearings regarding the execution and discovery of the June 17, 1983 will. Phillip Ashley Haynes testified that he discovered the will when he was cleaning out the decedent's room and the will "kind of fell out from underneath" the decedent's sock drawer. Phillip Ashley Haynes stated that in his opinion the signature on the June 17, 1983 will was the signature of his father. The witnesses to the will testified that they did not sign the will in each other's presence, they did not see the decedent sign the will, and they did not see the decedent's signature upon the will when they signed it. Detective Mike Fitzpatrick of the Newark Police Department advised the court that he conducted an investigation into the possible forgery of the last will and testament of Dr. Phillip R. Haynes. Detective Fitzpatrick was provided with the court file containing all of the papers filed up to the date of April 25, 1984. Those papers along with various papers and documents containing thirty-five signatures of Dr. Phillip R. Haynes, were submitted to the Bureau of Criminal Identification and Investigation. In the opinion of D. Stephen Green and Walter S. Knight, documents examiners at the bureau, the two signatures of Phillip R. Haynes contained in the June 17, 1983 will were forgeries. Based on the evidence presented, the court found that the document alleged to be the last will and testament of Dr. Phillip R. Haynes, was a forgery and ordered the will set aside. John Haynes was ordered to turn over all assets, documents and business records of the estate to a special administrator. David Martin was ordered to produce a copy of the November 15, 1979 will that he had in his possession.
Thereafter, Cornelia A. Haynes, the decedent's ex-wife, appellee herein, filed an application to probate the November 15, 1979 will of the decedent as a lost, spoliated, or destroyed will pursuant to R.C. 2107.26. Cornelia Haynes offered the testimony of witnesses to show the proper execution of the November 15, 1979 will. Additionally, Cornelia Haynes offered the testimony of three business associates and personal friends of the decedent that showed the decedent's state of mind regarding the disposition of his estate up to the time of his death in November 1983. The testimony indicated that up to two weeks before his death the decedent had taken no steps to change the estate plan set forth in his November 15, 1979 will.
On direct examination, Phillip Ashley Haynes denied making statements that he was dissatisfied with his father's original will, that he had seen his father's original will, that he was going to have a forged will made and that he had destroyed the original will. On cross-examination, he denied that he had destroyed the original will of his father or had offered $30,000 to have a forged will made. Cornelia Haynes was not permitted to introduce the testimony of Lillian Romine, Julie Ellis, Dr. Carl Baker and Dr. Richard McCullough as to statements Phillip Ashley Haynes had made to these witnesses regarding his destroying the original will dated November 15, 1979 and paying $30,000 to have a forged will made.
On November 2, 1984, the probate court filed an opinion finding that the 1979 will was executed in the manner provided by law and that the contents of the will were substantially proved. However, the probate court also found that Cornelia Haynes had not established by clear and convincing evidence that the will was lost, spoliated, or destroyed after the death of the testator or before the death of the testator, but without his knowledge.
The court of appeals reversed the judgment of the probate court and remanded the case for a new hearing based on its conclusion that the probate court had applied the incorrect burden of proof as to the sufficiency of evidence to rebut the presumption that the decedent revoked his will. Further, the court held that Phillip Ashley Haynes was a "party" to the probate proceedings and the declarations allegedly made by Phillip Ashley Haynes to the four witnesses were admissible as against his interest.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Daniel E. Wright, for appellee.
Lucas, Prendergast, Albright, Gibson Newman, James E. Melle and Ralph W. Lucas, for appellant.
The first issue for our consideration concerns the standard of proof regarding the sufficiency of the evidence to rebut the presumption that the testator revoked his will. The controlling statute is R.C. 2107.26, which provides:
"When an original will is lost, spoliated, or destroyed subsequent to the death of a testator, or before the death of such testator if the testator's lack of knowledge of such loss, spoliation, or destruction can be proved by clear and convincing testimony, * * * the court may admit such lost, spoliated, or destroyed will to probate, if such court is satisfied the will was executed according to the law in force at the time of its execution and not revoked at the death of the testator."
This court has previously determined the appropriate standard of proof for admitting a lost, spoliated, or destroyed will to probate in In re Estate of Tyler (1953), 159 Ohio St. 492 [50 O.O. 419], and Cole v. McClure (1913), 88 Ohio St. 1. Both these cases held that to overcome the presumption that the decedent revoked his will, the proponent of the will had to satisfy the probate court by clear and convincing evidence that the will was lost, spoliated, or destroyed after decedent's death or, if such occurred before the decedent's death, that decedent lacked knowledge of such spoliation.
Accordingly, the standard of proof necessary to admit a lost, spoliated, or destroyed will to probate is clear and convincing evidence that the loss, spoliation, or destruction of the original will occurred subsequent to the death of the testator or before the death of the testator, but without his knowledge. Clear and convincing evidence is the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal.
The second issue for our consideration is whether the probate court properly excluded testimony proffered by Cornelia Haynes tending to establish that Phillip Ashley Haynes and John Haynes destroyed the original will, dated November 15, 1979.
Where a will is left in the custody of someone other than the testator and is not found at the death of the testator, there is no presumption that it was revoked. Annotation (1949), 3 A.L.R. 2d 949, 951; Annotation (1948), 172 A.L.R. 354, 356. However, where a will is left in the custody of a testator and cannot be found after his death a presumption arises that he destroyed the will with an intent to revoke it. Behrens v. Behrens (1890), 47 Ohio St. 323; Annotation (1932), 79 A.L.R. 1493, 1498.
The presumption is not conclusive and may be rebutted; it is by no means an impossible burden. The presumption may be overcome by proof of declarations made by the decedent, by proof of circumstances surrounding the condition of the testator or of the testator's relations to the persons involved, or by testimony that a third party fraudulently destroyed the will.
The proceeding to admit a lost, spoliated, or destroyed will is a special statutory proceeding in which the hearsay rule is inapplicable. Testimony by witnesses to declarations made by one other than the testator tending either to support or rebut the presumption is admissible on the issue of revocation. The role of the probate court is to review all facts and circumstances surrounding the condition of the testator, the execution of the will and, if the proceeding is to admit a lost, spoliated, or destroyed will, the explanation of the missing, spoliated, or destroyed will so that the court may act from all testimony that may be offered. As stated in Banning v. Banning (1861), 12 Ohio St. 437, 448: "The establishment and probate of a spoliated will is no idle ceremony, no matter of mere form, no ex parte proceeding; but, on the contrary, it is a proceeding on full notice, affording ample opportunity for contest * * *." We therefore hold that the rejection of the proffered testimony was prejudicial error and requires a rehearing on the issue of revocation.
We acknowledge that the Staff Note to Evid. R. 101(C)(7) indicates that a probate proceeding may become adversarial when a dispute over the admissibility of a will occurs and in that instance the Rules of Evidence should apply to the proceeding. Even if we were to hold the Rules of Evidence applicable in the present case, the prior out-of-court statements made by Phillip Ashley Haynes would be admissible as an admission by a party opponent, Evid. R. 801(D)(2).
Accordingly, and for the reasons stated herein, we affirm the court of appeals' judgment reversing the probate court and remand this cause to that court for further proceedings consistent with this decision.
Judgment affirmed and cause remanded.
SWEENEY, LOCHER and C. BROWN, JJ., concur.
HOLMES, J., concurs in part and dissents in part.
CELEBREZZE, C.J., concurs in judgment only.
DOUGLAS, J., dissents.
I agree with the majority's analysis and conclusion as to the standard of proof necessary to admit a lost, spoliated, or destroyed will. However, I must disagree with its characterization of a proceeding to admit a lost, spoliated, or destroyed will as one in which the hearsay rule is inapplicable. For the reasons below, I would find the hearsay rule, and its exceptions, applicable to the case sub judice and order affirmance of the appellate court's decision on that basis.
Although Evid. R. 101(C)(7) provides that the rules do not apply to "[s]pecial statutory proceedings of a non-adversary nature in which these rules would by their nature be clearly inapplicable," the Staff Note interpreting such provision clearly demonstrates that the Rules of Evidence were meant to apply in situations such as the case at bar. There it is said that:
"* * * Ordinarily, the probate of an estate is non-adversary, and the rules of evidence should not be applicable. But if a dispute should arise during the course of the probate proceedings (for example, a will contest, itself a special statutory proceeding governed by R.C. 2107.71 to 2107.77) the procedure waxes adversary and the rules of evidence should apply.
"As for the many `adversary' statutory proceedings there is every reason to apply the rules of evidence * * *. To give a blanket exclusion to special statutory proceedings adversary in nature would leave a substantial gap in the applicability of the rules of evidence. * * *" (Emphasis added.)
Here, the son of the deceased was confronted on cross-examination with questions regarding his part in the destruction of the original of the 1979 will and the forgery of the 1983 will. Upon his denial of such allegations, appellee, ex-wife of the deceased and mother of the son, attempted to offer the testimony of four witnesses as to the destruction of the 1979 will and payment of $30,000 to have a new will made. Without this testimony being admitted, there may not be clear and convincing evidence that decedent did not destroy the original of the 1979 will, thus requiring a setting aside of the photocopy of the 1979 will. With the 1983 will having been identified as a forgery and set aside by the probate court, decedent's estate would then pass under this state's descent and distribution laws, under which the son of the deceased would immediately take all, or a large share of the $1,000,000 estate, if there were no other children and the deceased had not remarried, without any of the spendthrift trust restrictions imposed by the 1979 will. These circumstances certainly make the son's financial interest at stake before the probate court adverse to the financial interests of the other devisees and legatees. The lost, spoliated, or destroyed will proceeding could not help but take on adversary atmosphere, necessitating application of the Rules of Evidence under the theory espoused by the Staff Note to Evid. R. 101(C)(7), supra.
Even if the Rules of Evidence are applicable, as I believe they should be, the testimony may still be inadmissible as hearsay under Evid. R. 802. It appears that any statement made by appellant concerning destruction of a will and procurement of a forgery would be against appellant's financial and penal interests. Although the statements-against-interest exception to hearsay under Evid. R. 804(B)(3) applies only if the declarant, appellant here, is unavailable as a witness, which was not the case, the admission by a party opponent provided for in Evid. R. 801(D)(2) should be applied to allow admission into evidence of the testimony at issue.
Appellant contends he is not a party because of his lack of subpoena power and entitlement to defend or rebut. However, when probate proceedings become adversarial, it would be necessary to continue the analogy and to find that "interested persons" in probate proceedings are similar to their counterparts, the "parties" in ordinary civil proceedings, in order to give effect to the meaning of the evidentiary rules. Additionally, the Rules of Civil Procedure would also have to govern under R.C. 2101.32. Thus, appellant would certainly be a "party" and his statements would be admissible under Evid. R. 801(D)(2) as an exclusion from the hearsay rule.
Accordingly, I join in the affirmance of the appellate court's judgment and the remand of this cause to the probate court for further proceedings, but would allow the testimony at issue for the reasons discussed above rather than those articulated by the majority.