Master Adopts Draft Report on Issue of Partly Missing Will, Explains Burden Shifting When Page of a Will is Lost or Missing

Delaware Fiduciary Litigation Blog

Posted April 12, 2016

In the Matter of the Last Will and Testament Of Edward B. Sandstrom, Deceased, C.A. No. 8948-MA

Recently, in a case arising out of the unexplained disappearance of the first page of a will, Master Ayvazian dismissed several exceptions taken to her earlier draft report in which she concluded that the Petitioners had shown by a preponderance of the evidence that (1) a valid will was executed by the decedent; (2) the terms of the missing page; and (3) the missing page was unintentionally lost or destroyed and the decedent did not alter his testamentary intent prior to his death.

In this case, the first page of the Testator’s will (“the correct page”) was unintentionally lost or destroyed shortly after the Testator, while hospitalized, signed an amended version of his last will and testament (“the Will”). With a different first page (“the incorrect page”) attached to the front of the Will, the document was admitted to probate by the Testator’s son shortly after the Testator’s death. Exactly what happened to the correct first page of the Will remains unclear. However, due to the scrivener’s error, the incorrect first page of the Will created an ambiguity as to whether the Testator intended to devise his property in Lewes, Delaware to the Respondent (his son) or to the Petitioners (a close family friend and her husband).

In her draft report, Master Ayvazian recommended that the Court revoke the probate of the Will and admit to probate a copy of the corrected first page as the first page of the Testator’s last will and testament. The Master’s decision was based largely on the extrinsic evidence introduced at trial, specifically, the affidavit and the testimony of the attorney who drafted the Will.

The Respondent took exception to the Master’s draft report and submitted arguments that an affidavit and the trial testimony of the attorney who created the Will should have been excluded from the record for violating the attorney-client privilege. Additionally, the Respondent argued that the Petitioners failed to establish the necessary prima facie case to overcome the common law presumption of animo revocandi where: (1) the terms of the missing first page cannot be demonstrated because only the Testator and the attorney (who, according to the Respondent, was restricted by the attorney-client privilege from disclosing information) had knowledge of its terms; and (2) there was no evidence of any search for the missing first page.

The Master concluded that the Respondent waived his right to object to the attorney’s testimony and affidavit by failing to assert the attorney-client privilege before or during trial. Regardless, the Master wrote that the Respondent’s argument was “without merit because under Delaware Rule of Evidence 502(d)(2), there is no attorney-client privilege where both parties are claiming through the same deceased client.” According to the Master, “Delaware courts, along with most other state courts, allow a decedent’s attorney to testify to communications concerning the drafting of a will.”

Additionally, the Respondent argued that the Petitioners were required to prove that they had searched for the original correct first page of the Will, and that they failed to do so. He argued the Petitioners’ “failure to conduct a search of the hospital dooms their efforts to prove a missing will.” However, according to the Master, because the Will was in the Respondent’s possession during the two days between the execution of the Will and the delivery of the Will by the Respondent to a third party with the incorrect first page attached, the burden shifted to Respondent to demonstrate that the missing corrected first page was destroyed by the Testator or at his direction. The Master found that the Respondent failed to overcome the burden because he presented no evidence that the Will with the corrected first page was ever returned to the Testator and destroyed by the Testator or that the corrected first page was destroyed at the Testator’s direction.

Lastly, the Respondent argued the Petitioners failed to adequately plead a missing will theory. The Master decided the Respondent’s argument was “too late,” and that he, in accordance with Rule 15(b), had impliedly consented early on to the trial of these issues.

Based on her findings, the Master dismissed all of the Respondent’s exceptions to the draft report and adopted her draft report as her final report on the matter.


William M. Kelleher, Director
Gordon, Fournaris & Mammarella, P.A.
Henry Meldrum – Law Clerk