Unpublished Opinion No. 2004-UP-030
Heard November 6, 2003 – Filed January 16, 2004

PER CURIAM: This case involves whether a conformed copy of a will should be admitted to probate. Jerry Meehan as Personal Representative of the estate of Sammie Bruce, appeals the circuit court’s reversal of the probate court’s order, which accepted the conformed copy of the will for probate. We affirm.

Bruce died on July 8, 1999 from cancer after a period of hospitalization and recuperative care at National Healthcare between mid-April, 1999 and her death. During this time period she appointed her great-nephew Paul Embler as power of attorney to handle her affairs. As part of his duties, Mr. Embler secured Bruce’s residence by changing the locks, handled her finances, and made specific gifts at her request. Repeatedly, Embler asked Bruce about updating her “paperwork” and about the location of her “paperwork.” She told him that her “important papers were in a dresser drawer.”

Before Bruce’s death, Mr. Embler went with his aunt Ella Hendrix to the residence to search for the “important papers.” They found a dresser drawer with various documents in it that they then removed. One of the documents that appeared to Mr. Embler to be a will was opened and read by him. It stated that Meehan, another great-nephew of Bruce, was named as Personal Representative of Bruce’s estate. At the funeral, Mr. Embler gave the documents to Meehan. The documents included a conformed copy of Bruce’s will and not an original executed will.

Meehan petitioned the probate court for formal testacy and appointment as Personal Representative. All testate heirs of Bruce’s estate and intestate heirs not listed as beneficiaries under the will were listed as Respondents. The probate court admitted the conformed copy of the will to probate. The Probate Court Judge granted formal testacy and appointed Meehan as Personal Representative of the estate.

The Respondents appealed the probate court findings to the circuit court. The circuit court found that there was no clear and convincing evidence in the record to overcome the presumption that the original will had been destroyed. The court found that the will was not entitled to probate and Bruce’s estate must be administered as an intestate estate. The circuit court reversed and remanded the probate court’s ruling. Meehan appeals.

An appeal from the probate court to the circuit court regarding the validity of a will is a matter of law. Golini v. Bolton, 326 S.C. 333, 338, 482 S.E.2d 784, 787 (Ct. App. 1997). In an action at law decided in the probate court, the circuit court may not disturb the probate court’s findings of fact unless there is no evidence to support them. Matter of Howard, 315 S.C. 356, 361, 434 S.E.2d 254, 257 (1993). On appeal, this court will examine the record to see if there is any evidence to reasonably support the factual findings of the probate court. Dean v. Kilgore, 313 S.C. 257, 259, 437 S.E.2d 154, 155 (Ct.App. 1993).

Meehan argues the circuit court erred when it reversed the probate court because the evidence in the record supported the probate court’s finding that Bruce did not intend to revoke her will. We disagree.

“When the testator takes possession of his will and it cannot be found at his death, the law presumes that the testator destroyed the will animo revocandi.” Golini v. Bolton, 326 S.C. 333, 340, 482 S.E.2d 784, 787 (Ct. App. 1997). In arguing the presumption of revocation does not apply, Meehan relies on Golini, asserting that the facts of that case and the present one are similar. In Giolini, the probate court found that the will had not been revoked because the will had been returned to the attorney’s office. The attorney’s usual procedure was to keep some executed wills for clients in his lock-box. The probate court held that as the testator never had possession of the will, the presumption of revocation never arose. It admitted a conformed copy of the will to probate. The probate court’s findings were affirmed by the circuit court and this court. We find Golini factually distinguishable from this case because the attorney here did not take possession of Bruce’s will after execution.

Sammie Bruce executed her will and took possession of it on October 7, 1988. Richard Ruele, the attorney who prepared a will for Bruce on October 7, 1988, stated that it was routine practice for him at that time to prepare an original will for his clients as well as a conformed copy. He stated that Bruce would have been given the only original will as well as a conformed copy such as the one under discussion here. We find the presumption of revocation does arise in the present case.

This presumption, however, is a presumption of fact and can be rebutted. Bauskett v. Keitt, 22 S.C. 187, 191 (1885). The burden of rebutting the presumption with clear and convincing evidence belongs to the proponent of the will. Estate of Mason v. Mason, 289 S.C.273, 277, 346 S.E.2d 28, 31 (Ct. App. 1986). The presumption of fact must be rebutted by showing evidence “that the will existed at the time of his [the testator’s] death, was lost subsequent thereto, or had been destroyed by another without authority to do so.” Lowe v. Fickling, 207 S.C. 442, 447, 36 S.E.2d 293, 295.

Sammie Bruce had the copy of the will in her possession from its execution in 1988 until she was hospitalized in 1999. No original will was found at her death. In the drawer where Bruce said her important papers were kept, there was no original will. There were, however, only copies of the 1988 will and a copy of a previous will. Meehan produced no evidence, that the original will was lost after Bruce’s death. Furthermore there was no evidence presented of a third party destroying the will without her knowledge. The probate court speculated on the possibility that the decedent’s will may have been destroyed by a third party while Bruce was in the hospital. However, the law does not presume illegal acts. Lowe v. Fickling, 207 S.C. 442, 447, 36 S.E.2d 293, 295.

Reviewing the record, we find that Meehan did not succeed in rebutting the presumption that Sammie Bruce destroyed the will by clear and convincing evidence. Accordingly, we hold the circuit court was correct when it determined the probate court erred in admitting the copy of the will to probate. [1]

[1] The respondents contend the probate court erred when it decided to admit Embler’s testimony because the testimony violated the Dead Man’s Statute. S.C. Code Ann. §19-11-20 (Supp. 2002). We need not address this issue because even if the evidence was not properly admitted the record still fails to rebut the presumption that Bruce revoked her will.