Will can be enforced despite loss of original copy in flood

A Circuit Court did not err in enforcing a decedent’s will even though the original copy of the will could not be located, a three-judge panel of the Court of Appeals of Virginia held.

The original copy of the will was believed to be lost, rather than revoked, likely due to a 2019 flood that saw water pour into the lower level of the decedent’s home “like a waterfall.”

As the original will was unable to be located after the decedent’s death, the appellee in this case was required to present “some other cause for its disappearance, by clear and convincing evidence.”

Judge Daniel E. Ortiz wrote that the standard had been met.

“[T]he evidence established that in July 2019, sudden flooding caused water to pour into the Vienna house’s downstairs rooms ‘like a waterfall,’” Ortiz wrote. “Once the water receded, numerous items, including papers, had to be discarded because they were ‘ruined’ and unidentifiable.”

Ortiz’s opinion in Kreiser v. Peevely (VLW 025-7-265) was joined by Judge Stuart A. Raphael and Senior Judge Rosemarie Annunziata.

Counsel for the appellant did not respond to a request for comment.

Fairfax attorney Linh H. Ly, who represented the appellee Gary Peevely, said this case “has been one of my favorite cases of my career.”

“This case in particular involved the very unique fact that the decedent knew that the original copy of his will was lost while he was still alive and he could not find it after a diligent search within about a year of his death,” Ly said. “None of the existing lost will cases have this unique fact as the original wills cannot be found after the decedent’s death in those cases.”

Lost will

The decedent, Eric Kreiser, and his life partner, Raymond Dexter Thomas II, began their relationship in 1987, eventually purchasing a home in Vienna and a condominium in Florida.

In 2008, the couple jointly retained a law firm to prepare estate-planning documents. The original documents were provided to Kreiser and Thomas and the law firm retained photocopies.

Kreiser’s will gave Thomas his personal property and his residuary estate to the trustee of his trust. If Thomas were to predecease him, or upon Thomas’ death, the will provided Kreiser’s family members the ability to “select items of his tangible personal property” for themselves, while the trust property conveyed to Thomas’ niece and nephews. Thomas’ sister, Karen Peevely, was named successor co-trustee.

In July 2019, a severe flood hit the couple’s Vienna home, damaging many of Kreiser’s belongings, including documents. Per the opinion, many papers were thrown away after the flood, which left the downstairs level flooded with water “deep enough to cover the tops of [] shoes.”

Papers that were thrown away were “not identifiable” and many of the items were “all gummed up together” and “had to be scooped up with shovels.” During the flood repair process, asbestos was discovered in the home, forcing Thomas to move out of the home and necessitating the removal of all personal items. At the time, Kreiser lived in Florida due to work.

Thomas died in July 2020 during the renovations. After the contents were returned to the home, Kreiser and Karen discussed Thomas’ assets, which all passed to Kreiser following his death.

A lawyer with the firm who prepared Kreiser’s will testified that in early 2021, Kreiser reached out to let them know he could not find the original will and believed it to be lost when the house flooded. Per the testimony, he believed the estate plan was still in effect and did not express intent to revoke or change the will.

The lawyer advised Kreiser to execute a new will, which Kreiser did not do.

In future cases where there isn’t sufficient evidence to meet the presumption of revocation and a decedent’s will is lost during their lifetime, I’m curious to see whether Virginia’s appellate courts will decide to apply the presumption of loss.

— Linh H. Ly, Fairfax

A real estate agent who helped list the Vienna home for sale in early 2022 testified that Kreiser was “very concerned” that he could not find the original will, and that he desired his assets pass to Thomas’ niece and nephews.

Kreiser died unexpectedly in April 2022. Thomas’ brother-in-law, Gary Peevely, petitioned to admit a photocopy of Kreiser’s will to probate, alleging that the original was destroyed in the flood and that Kreiser maintained a “good relationship” with Peevely over the years and said that his children “will be taken care of.”

Kreiser’s sister, Joanne Kreiser, argued the Circuit Court should presume her brother revoked his will, arguing that he chose to die intestate by not executing a new will despite guidance from an attorney. Joanne also argued that her brother’s relationship with Thomas had deteriorated in recent years and that her relationship with her brother “was good by the end of 2019” and that he turned to her, not Thomas, when he needed a place to stay.

The Circuit Court found Kreiser’s will was not revoked, as Peevely provided evidence that “far exceeded the clear and convincing evidence threshold” that the will was not intended to be revoked, and ordered the copy of Kreiser’s will admitted to probate. Joanne Kreiser appealed.

‘Close relationship’

“Whether the Circuit Court applied the correct legal standard is a question of law that we review de novo,” Ortiz wrote. “But whether a party has overcome these presumptions by clear and convincing evidence that the testator did not revoke his will is a question of sufficiency of the evidence.”

In the present case, Ortiz wrote that the Circuit Court “was not plainly wrong” in finding for Peevely and determining he had overcome the clear and convincing evidence burden.

Taking the evidence in the light most favorable to Peevely, Ortiz said “two likely explanations” were presented for how Kreiser’s original will was lost: the initial flood in 2019, or when the house was emptied of all of its contents for asbestos removal.

“But even if we consider only Eric’s testamentary intent, as evidenced ‘by the consistency of his mental attitude towards his various relatives,’ the evidence still supports the conclusion that ‘whatever may have happened to [the will], the testator did not revoke it,’” Ortiz wrote.

At issue were the relationships between Kreiser and Thomas’ family, which Ortiz wrote was a “close relationship,” and that with his own biological family, which was “less sunny” according to the judge.

“[F]rom prior to executing his will in 2008 until his death, Eric maintained a close relationship with Thomas’s family, participating in their lives and allowing them to participate in his,” Ortiz wrote. “But, during those same years, Eric had a distant relationship with [Joanne] Kreiser and the rest of his family.”

Ortiz also highlighted the testimony that stated Kreiser was “very concerned” about his missing will and that he illustrated his intent to be unchanged, along with the fact that copies of the will were obtained and stored with other important papers.

“If Eric had intended to revoke his will ‘by destroying the original, it would have been logical that he would have removed the photocopy from his file of important papers,’” Ortiz wrote, adding that his actions were “inconsistent with” someone who revoked his will. Ortiz affirmed the judgment of the Circuit Court to admit the will copy to probate, as the evidence supported that Peevely met the clear and convincing threshold to show that Kreiser did not revoke his will.

Looking ahead

Ly told Virginia Lawyers Weekly that as she was working on the case, she “wondered whether the Court of Appeals would decide to make a ruling of first impression” as to interpreting the presumption of loss to include a fact pattern like the present case where the decedent knew the original will was lost while they were still alive.

“Because there was sufficient evidence to meet the presumption of revocation, the Court of Appeals did not need to determine whether the circuit court properly applied the presumption of loss and affirmed the trial court,” Ly said. “However, in future cases where there isn’t sufficient evidence to meet the presumption of revocation and a decedent’s will is lost during their lifetime, I’m curious to see whether Virginia’s appellate courts will decide to apply the presumption of loss.”

Ly added that during oral arguments, Raphael asked whether she thought a third presumption should be created due to this case.

“That indicated to me that changes in these two presumptions could potentially be on the horizon if the unique fact that a decedent’s will is lost during their lifetime continues to come up,” Ly said.