A Lost Daughter and a Lost Will

In Re Estate of Rucker, 2024 WL 3271986 (Tn.App. 2024)

Rucker died in 2020.  His wife and two daughters found no will and commenced intestate administration.  In the meantime, an unknown “daughter” (Daughter) emerged and attempted to probate a copy of a will Rucker had executed in 2017.  It left everything to her.  (Daughter could take nothing by way of intestacy as there was no proof that she was the decedent’s natural or adopted child.)

Before he died, Rucker had transferred much of his property to his wife and two known daughters. That suggested that the 2017 will favoring Daughter might have been the finishing touch on his estate plan.  There was no indication that the copy was a fake: in 2017, Rucker clearly desired to benefit Daughter.

The trial court initially approved probate of the 2017 copy, but the appeals court reversed, citing the lack of any proof that Rucker had destroyed or otherwise revoked that will.  This was an unreasonable standard.  As a matter of logic, proving a negative is difficult and perhaps impossible.  Nonetheless, it is frequently the burden in lost will cases.

CCK TAKEAWAYS: The Rucker case is thought-provoking.  Its practical lesson is that charities should remind testators of the importance of maintaining estate-related documents in a safe place and disclosing their location to appropriate parties.

More cynically, we wonder if some wills (perhaps even Rucker’s) are “lost” because those who would benefit from intestacy have first access to the document after the testator’s death. It might make more sense if courts abandoned the standard of proof enunciated in Rucker and instead adopted a rule such as “a surviving copy of an otherwise valid will can be accepted for probate unless there is substantial evidence that the testator revoked it.”  Such an approach would likely honor the decedent’s intentions in the great majority of cases.

(This blog was originally posted on our LinkedIn on February 20, 2025.)