Markofske v. Cotter Case Brief

Summary of Markofske v. Cotter, 47 Wis. 2d 769 (1970)

Facts: Mrs. Markofske died a resident of a nursing home after her husband had died four years earlier. Her surviving heirs were the appellant-brother and sister, and the appellees composed of another sister, nephew and niece-Cotter.

Issue: Whether the trial court correctly presumed revocation, or that the testatrix destroyed the 1965 and 1960 wills?

Holding: In the absence of any testimony that the testatrix was dissatisfied with the will, destroyed it, or that she intended to revoke; or evidence that she did not have control over her personal papers and files for two years prior to her death; or reference by testatrix to her will months before her death; and the manner she kept her other important papers is sufficient to rebut the presumption of revocation and support the conclusion that the latest will was not revoked, by the testatrix by destruction or otherwise.

Procedure: A Petition for probate the last will was filed and cnty judge entered the order for hearing of proof on lost or destroyed will. Appellants moved to quash and dismiss b/c petition did not allege sufficient facts to confer jurisdiction. Cnty Jdge Dismissed and directed appellee to file petition advancing in probate as an alternative of last will, a copy of will dated 1965, a copy of will dated 1960 and the original will dated 1959. Appellees did so, appellants demurred and moved to quash the petition on several grounds. Ct again overruled and denied motion, the ct then concluded that the 1965 will and the 1960 will were destroyed by the deceased who intended that the 1959 will would be her last will. Appellants appealed. Reversed and Remanded.

Rule: As a matter of law presumption of revocation arises from the nonproduction of a will, which is rebuttable upon evidence tending to show a will was known to exist at the time of death and the decedent made no indication of a change of intent or had made declarations of satisfaction with the will’s provisions.

Rationale: The Appellants stand to gain nothing under any of the three wills. When the testatrix entered the nursing home her papers, furniture, and personal belongings were moved to the home of her sister-appellee. Her sister testified that she was unable to locate a will and her son testified that he did not search for the lost will. Both the atty-scrivner and witness to the execution testified that they knew of the original, but not its current location. Where very little change occurred in between the three wills, there is little reason for the testatrix to have revoked the 1965 will in the belief she could revive an earlier will. Testatrix’s sister stood to gain nothing in any of the three wills, did not contest the admission of any of the wills, no evidence supports a finding that she made a diligent search for the 1965 will, and her interests would be furthered if no will were found. Whatever virtue the presumption created by a failure to find a will, that virtue is seriously diminished when it must depend on a search made by those whose interests will be impaired by production of the will.

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