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Evidence shows that will was not destroyed

A copy of the testator’s will, which disinherited her sons, was properly admitted to probate. The estate’s executor successfully rebutted the presumption that the missing original “was revoked by clear and convincing evidence.”


After Lynch-Carbaugh died, Kenney, the estate’s executor, moved to probate a copy of Lynch-Carbaugh’s will, alleging that the original will could not be located.

Kenney alleged that Lynch-Carbaugh had died testate because she validly executed the proposed will and had it when she died.

Kenney also alleged that Lynch-Carbaugh’s sons, John and Kevin Glynn “were Lynch-Carbaugh’s sole heirs at law and that a living trust established by Lynch-Carbaugh was the sole beneficiary of the will.”

The Glynns opposed probating the will.

Kenney alleged that “the condition of” Lynch-Carbaugh’s house prevented her from locating the will.

She “introduced photographs and videos that showed the home ‘in disarray.’ One witness testified that the home ‘looked like a shredder had gone through the house and littered documents all over the home.’

“Additionally, the home showed evidence of a rodent infestation and bottles filled with apparent human waste were found in the home. Due to the condition of the home, Kenney had difficulty finding even the most essential objects of daily life, such as Lynch-Carbaugh’s purse and car keys.

“Kenney hired a professional remediation company to clean out Lynch-Carbaugh’s home.”

Will preparation

“Attorney Donna Wilson prepared the will that Kenney sought to establish. Wilson first prepared a will in 2018 for Lynch-Carbaugh, who then enrolled in a ‘maintenance program’ that allowed her to update her estate planning documents at no additional cost.

“Wilson met with Lynch-Carbaugh three times to update her documents. Lynch-Carbaugh ‘had possession’ of her will and other legal documents when she left Wilson’s office and ‘would have kept [the documents] in her home’ in between meetings. …

“The most recent will was executed in July 2020. The will contained a provision that ‘specifically disinherit[ed]’ the Glynns ‘for reasons personal to [Lynch-Carbaugh] and known to them.’

“Lynch-Carbaugh did not contact Wilson after July 2020 to request changes to her documents or ‘share any reason’ that ‘she wanted to revoke’ her will. Lynch-Carbaugh renewed her enrollment in the maintenance program … and Wilson testified it ‘would be unlikely’ that Lynch-Carbaugh would have gone to another attorney to make changes to her estate plan. …

“The Glynns argued that Lynch-Carbaugh repeatedly accessed her will to take it to Wilson for updates and that she kept ‘it safe’ and ‘accessible.’ Moreover, she ‘had plans to go back and talk about it again’ with Wilson, proving that ‘she was not certain on her estate plan,’ which had been changed more than once.

“The presumption of revocation applied, and Kenney had not overcome it with evidence showing only that the will ‘could have been chewed up by rodents,’ ‘could be lost,’ or that ‘it could still be’ in the house.

“The Glynns also contended that merely not knowing what happened to the will, which was all that Kenney had proved, was not enough to overcome the presumption of revocation.”

The trial court denied the Glynns’ motion to strike. The Glynns “presented no evidence.” The court ultimately “ordered that the copy of the will presented by Kenney be admitted to probate and that Kenney be permitted to qualify as the personal representative of Lynch-Carbaugh’s estate. This appeal followed.”

Multiple theories

“The Glynns first argue that, as a matter of law, the proponent of a missing will cannot overcome the presumption by clear and convincing evidence if the proponent offers multiple theories of the will’s whereabouts. …

“The Virginia Supreme Court has held, on multiple occasions, that the proponent of a missing will is not required to prove what happened to the will. …

Harris v. Harris, 216 Va. 716 (1976), “stands for the proposition that the clear and convincing standard cannot be met by evidence that is capable of producing ‘equally probable inferences.’ …

“The fact remains, however, that the proponent is under no burden to prove anything regarding the whereabouts of the will. The proponent’s only burden in overcoming the presumption is to prove, by clear and convincing evidence, that the testator did not intend to revoke their will. …

“[T]he circuit court did not err by holding that Kenney overcame the presumption despite Kenney offering multiple theories of the will’s whereabouts.”

Sufficient evidence

The Glynns assert Kenney’s evidence was not clear and convincing evidence “that Lynch-Carbaugh did not revoke her will. …

“[S]everal factors indicated that Lynch-Carbaugh did not revoke her will.

“First, in her will, Lynch-Carbaugh explicitly disinherited her sons ‘for reasons … known to them.’ Although these reasons were not explained on the record, the explicit exclusions of her sons in her will indicated a clear desire that her estate not pass by intestacy; indeed, her lawyer testified that she was consistent that she wanted charities to inherit her estate. …

“[T]his indicates that Lynch-Carbaugh … did not intend for her estate to pass to her sons. …

“Second, Lynch-Carbaugh was a subscriber to a legal services plan that she used regularly to update her estate planning. Had she sought to revoke her will, she likely would have used the legal services plan that she used to make changes to her previous wills.

“Third, there was no evidence introduced of anything that might have happened to change Lynch-Carbaugh’s mind regarding the disposition of her estate. …

“Finally, the condition of Lynch-Carbaugh’s home provides a plausible explanation for the will’s absence other than revocation. The will could have been destroyed by rodents, lost in the mass of documents, or taken by someone who had access to Lynch-Carbaugh’s home after her death. …

“[T]here is credible evidence in the record that supported the circuit court’s conclusion that Kenney provided clear and convincing evidence that Lynch-Carbaugh did not revoke her will by destruction.”

Glynn, et al. v. Kenney, Record No. 0327-21-1, March 21, 2023. CAV (published opinion) (Humphreys). From the Circuit Court of the City of Virginia Beach (Mahan). M. Bradley Brickhouse for appellants. Jana Nattermann for appellee. VLW 023-7-115, 8 pp.

VLW 023-7-115

Virginia Lawyers Weekly