FILED
Jun 11 2020, 9:12 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
W. Edward Skees Michael M. Maschmeyer
The Skees Law Office Jeffersonville, Indiana
New Albany, Indiana John D. Cox
Lynch, Cox, Gilman
& Goodman, P.S.C.
Louisville, Kentucky
IN THE
COURT OF APPEALS OF INDIANA
Christal Trowbridge, June 11, 2020
Appellant-Respondent, Court of Appeals Case No.
Co-Personal Representative 19A-ES-3022
v. Appeal from the
Clark Circuit Court
In re the Estate of Everett The Honorable
Thomas Trowbridge, Andrew Adams, Judge
Appellee-Petitioner The Honorable
Kenneth R. Abbott, Magistrate
Michael T. Trowbridge, Trial Court Cause No.
Appellee, 10C01-1807-ES-32
Personal Representative
Vaidik, Judge.
Court of Appeals of Indiana | Opinion 19A-ES-3022 | June 11, 2020 Page 1 of 15
Case Summary
[1] In the second appeal in this case, Christal Trowbridge contends that the probate
court erred in refusing to probate the will of her ex-husband, Everett Thomas
Trowbridge. Although we affirm the probate court’s conclusion that the Estate
of Everett Thomas Trowbridge (“the Estate”) is entitled to the presumption that
Trowbridge destroyed his will with the intent to revoke it, we agree with
Christal that the court did not engage in the proper analysis to determine
whether she rebutted that presumption. We therefore reverse on this issue and
remand with instructions for the court to issue a new order applying the correct
analysis.
Facts and Procedural History
[2] Trowbridge and Christal married in 2003 and divorced in 2012. According to
their property-settlement agreement, Christal agreed to quitclaim her interest in
a house on Tucker Avenue in Clarksville. Following the divorce, Christal never
executed a quitclaim deed. And Trowbridge never demanded that she do so. See
Trowbridge v. Trowbridge, No. 19A-DR-856 (Ind. Ct. App. Sept. 11, 2019).
[3] Trowbridge died on June 6, 2018, leaving behind his father, Everett, and his
brother, Michael. On July 13, Michael filed a Petition for Issuance of Letters of
Administration, asserting that Trowbridge died intestate. On July 16, the
probate court granted Michael’s petition and appointed him personal
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representative of the Estate. Attorney Michael Maschmeyer represents the
Estate.
[4] Four months later, on November 13, Christal filed a Petition for Probate of
Will and Appointment of Co-Personal Representative. In the petition, Christal
asserted that Trowbridge died testate pursuant to a will executed on April 30,
2012, about two months after their divorce. According to the will submitted by
Christal, she and Michael were co-executors, and she was to receive the house
on Tucker Avenue, Trowbridge’s Edwards Jones retirement account, 25% of
his Chase retirement account (the remaining 75% was to go to Michael), and all
of his personal property, including his cars. The combination to Trowbridge’s
safe was handwritten in the margin of the will. The next day, Michael,
represented by Maschmeyer, filed an objection to the probate of the will.
[5] A hearing was held in January 2019. Three witnesses testified: Michael,
Maschmeyer, and Christal. Michael testified that “right after” his brother died
in the hospital, he and his father went to Trowbridge’s house and opened the
safe. First Hr’g Tr. p. 7. Michael said he found many important papers inside
the safe (such as Trowbridge’s social-security card and birth certificate) but no
will. In addition, Michael testified that he searched the house but didn’t find a
will. When asked if he knew why his brother would have “destroyed his
original will,” Michael said he had “no idea[].” Id. at 11-12.
[6] Maschmeyer testified about a meeting he had with Christal in October 2018.
Specifically, he said Christal called him in early October and told him she had
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Trowbridge’s will. Christal then met with Maschmeyer at his office on October
15 and showed him the will. Maschmeyer testified about their meeting:
[Christal] told me when she brought that Will in that
[Trowbridge] had given her this document and it had written on
it the combination of the safe at his house where the original will
would be kept. The document she brought in was therefore a
signed copy or duplicate of the original will.
Id. at 14-15. According to Maschmeyer, he told Christal that before he could
offer the will for probate, he needed to research whether a copy of a will could
be probated under Indiana law. Maschmeyer testified that he then contacted
Michael to confirm that no will had been found in the safe. During their
conversation, Michael “asked [Maschmeyer] to research whether a signed copy
was approvable by the court, because he would object to a copy.” Id. at 15. In
addition, Michael told Maschmeyer that “[h]e had heard that a copy was no
good.” Id.
[7] Maschmeyer testified that during his research, he found the case Estate of Fowler
v. Perry, which provides:
In Indiana, the general rule is that where a testator retains
possession or control of a will and the will is not found at the
testator’s death, a presumption arises that the will was destroyed
with the intent to revoke it. The proponent of the will may rebut
that presumption by introducing evidence which tends to support
a contrary conclusion such that destruction with the intent to
revoke is disproven by a preponderance of the evidence. When a
copy of the will is offered for probate, and probate of the copy is
contested, the burden of proof remains on the contesting party
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throughout the proceeding to establish that the will was in fact
revoked. However, the contestor is aided by the presumption of
destruction with the intent to revoke. That presumption shifts the
burden of going forward to the proponent of the will to present
evidence to rebut the presumption. Of course, the contestor still
retains the ultimate burden of proof.
681 N.E.2d 739, 741 (Ind. Ct. App. 1997) (citations omitted), trans. denied.
Maschmeyer explained that after completing his research, he sent Christal a
letter on October 30. The letter provides, in part:
The document clearly shows the combination for [Trowbridge’s]
safe, which you told me was where [he] kept his original Will.
This would . . . mean the document [Trowbridge] gave you was a
signed copy or simply a duplication/copy of his Will.
First Hr’g Ex. 2. Maschmeyer then explained the results of his research,
included a copy of Estate of Fowler, said he would not be offering the will for
probate, and encouraged Christal to obtain an attorney. Id.
[8] Finally, Christal testified that shortly after their divorce, Trowbridge brought
the original will to her. She specifically denied telling Maschmeyer that the
original will was in Trowbridge’s safe. In addition, Christal explained that
although she and Trowbridge had divorced in 2012, she was still the beneficiary
of his accounts, and she had no reason to believe that Trowbridge had revoked
his will. Finally, Christal pointed out that Michael stood to gain more if the will
was not probated.
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[9] Thereafter, the probate court entered an order denying probate of the will.
Christal appealed, and this Court reversed and remanded:
The outcome here was driven by applying a presumption that a
will in the testator’s possession later found missing was missing
because the testator destroyed it with intent to revoke. But there
must be a predicate finding of possession for something to be
missing from one’s possession. Notwithstanding deficiency in
this regard, the probate court afforded the Estate the presumption
that the original was destroyed with intent to revoke. Had the
presumption been supported by the evidence, it would have
shifted to [Christal] the burden of going forward with evidence to
rebut the presumption. The probate court summarily concluded
that Trowbridge failed to rebut the presumption with admissible
and relevant evidence. By statute, the Estate, as contestor of the
proffered will, bore the ultimate burden of proof. Moreover, the
Estate was not entitled to a presumption in its favor without
predicate factual findings. Because the probate court misplaced
the burden of proof, its decision is contrary to law.
Trowbridge v. Estate of Trowbridge, 131 N.E.3d 630, 634 (Ind. Ct. App. 2019)
(citation omitted).
[10] The probate court held another hearing in October 2019. The court considered
the testimony and exhibits from the January 2019 hearing in addition to the
new testimony and exhibits. Christal testified that when Trowbridge gave her
the original will shortly after their divorce, he told her, “I have no one else that
I want to have my goods. My father will be dead before me. I want you to have
my things.” Second Hr’g Tr. Vol. II p. 81. According to Christal, when she was
married to Trowbridge, he and Michael did not have a close relationship and
only saw each other on holidays. See id. at 71. In addition, Christal testified that
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although she had not talked to Trowbridge since 2012, he still named her as the
beneficiary of his accounts. In fact, Trowbridge confirmed Christal as the
beneficiary of one of his accounts about a year before his death, on March 30,
2017. See Second Hr’g Ex. B. Christal testified that Trowbridge never called her
to say he was revoking the will. When asked if she thought Michael would have
destroyed any will found in his brother’s safe, Christal responded “absolutely.”
Second Hr’g Tr. Vol. II p. 20.
[11] Maschmeyer testified that he took notes during his October 15, 2018 meeting
with Christal. According to these notes, Christal told Maschmeyer that the
original will was in the safe. See Second Hr’g Ex. 6.
[12] Finally, Michael testified that he saw his brother “every three (3) or four (4)
days” and that he had access to Trowbridge’s house while he was hospitalized.
See Second Hr’g Tr. Vol. II p. 54.
[13] In November 2019, the probate court entered a second order denying probate of
the will. The court first addressed whether, according to Estate of Fowler, the
Estate was entitled to the presumption that Trowbridge destroyed the will with
the intent to revoke it. The court made these findings and conclusions on this
point:
24) On October 15, 2018, Christal met with Maschmeyer in his
office. At this time Maschmeyer was acting as an adversary to
Christal . . . ;
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25) During the meeting with Maschmeyer, Christal notified
Maschmeyer that she had a copy of a Will; that the Will was
given to her by her ex-husband; that her ex-husband told her that
the original Will is in his safe; and that her copy of the Will had
written in the margin the combination of the safe;
26) Contemporaneous with their discussions at the meeting,
Maschmeyer wrote notes of the conversation. Those notes
support the testimony of Maschmeyer as to the conversation (see
Estate Exhibit 6);
27) At the time of the conversation, neither Christal nor
Maschmeyer knew of the existing law and they assumed that a
copy could be probated;
28) Subsequent to the conversation, Maschmeyer conducted
research and discovered the state of the law . . . ;
29) Subsequent to hearing the results of Maschmeyer’s research,
Christal declared that she had the original Will rather than a
copy;
30) The Court FINDS the combination of Maschmeyer’s
testimony and the contemporaneous notes he recorded on his
note pad to be compelling and hereby concludes by a
preponderance of the evidence that [Trowbridge] had the
original Will in his safe shortly after its execution on April 30,
2012;
31) Immediately after [Trowbridge’s death], Michael[] and
[Trowbridge’s] father went to [Trowbridge’s] residence and
opened the safe wherein many of [Trowbridge’s] important
papers were found. However, no will was found;
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*****
33) [Trowbridge’s] Will could not be found upon a search of the
house by Michael;
34) The Court FINDS by a preponderance of the evidence that
the original Will could not be found, and that the estate is
entitled to the presumption that [Trowbridge] destroyed the
Will with the intent to revoke it[.]
Appellant’s App. Vol. II pp. 9-10 (emphases added). The court then addressed
whether Christal had rebutted the presumption that the original will was
destroyed with the intent to revoke it. The court made these findings and
conclusions on this point:
35) The ruling in Estate of Fowler v. Perry, 681 N.E.2d 739 (Ind.
Ct. App. 1997), states “We acknowledge that Indiana attorneys
often retain copies in their files of wills bearing original
signatures and that it is not uncommon for such copies to be
offered and admitted to probate when there is no objection.
However, in those cases where the original will cannot be found
and an objection to probate is raised, it is well settled that there is
a presumption that the will was destroyed with an intent to
revoke.[”]
36) The existence of a duplicate does not, in itself, rebut the
presumption of revocation. Thus, it remains incumbent upon the
will proponent to go forward with additional evidence that the
will was not revoked.
37) The Last Will and Testament presented as Estate’s Exhibit 1
is the Will that Christal proffers as the original Will. It has the
following relevant characteristics:
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a. It appears that the typewriting is not the original
typewriting that would have come as the original print
from a printer. It appears to be a photocopy;
b. The handwritten information on the Will appears to be
a photocopy of the original handwritten print;
c. The handwritten safe combination appears to be a
photocopy of the original handwritten print;
d. The Court cannot determine by a preponderance of the
evidence that the signatures on the Will are original
signatures despite the testimony that they were;
38) There was no testimony by a handwriting or document
expert to support a conclusion that the Will was an original;
39) The only testimony presented to support the fact that the
original Will was not destroyed was that of Christal wherein she
said that [Trowbridge] told her that he was giving her the
original. The Court has found by its conclusion to Issue 1 that
she did not have the original Will;
40) The Court therefore concludes that by virtue of the
characteristics of the proffered Will, the absence of expert
testimony that it is an original document, and the Court[’]s
finding that the original Will was in the safe, that Christal has
failed to prove by a preponderance that the proffered Will is the
original Will, therefore, Christal has not overcome the
presumption of revocation.
Id. at 10-11.
[14] Christal now appeals.
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Discussion and Decision
[15] Christal contends that the probate court erred in refusing to probate the will
Trowbridge gave her. Christal first argues that the court erred in determining
that the Estate was entitled to the presumption that the will was destroyed with
the intent to revoke it. The general rule is that where a testator retains
possession or control of a will and the will is not found at the testator’s death, a
presumption arises that the will was destroyed with the intent to revoke
it. Estate of Fowler, 681 N.E.2d at 741. In addition, when the original will cannot
be located, it is not assumed to have been lost; rather, it is presumed to have
been destroyed with the intent to revoke it. Id. at 742. A duplicate will does not
survive revocation of the original. Id.
[16] Here, ample evidence in the record supports the probate court’s findings that
Trowbridge retained possession or control of the original will, that Christal had
a photocopy, and that the original will was not found at Trowbridge’s death.
Maschmeyer testified that during their October 15, 2018 meeting, Christal told
him that Trowbridge “had given her this document and it had written on it the
combination of the safe at his house where the original will would be kept.”
First Hr’g Tr. pp. 14-15. In addition, Maschmeyer took contemporaneous notes
during the meeting, and according to these notes, Christal told Maschmeyer
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that the original will was in Trowbridge’s safe.1 Michael testified that after
Trowbridge died in the hospital, he went to Trowbridge’s house but didn’t find
a will in the safe or anywhere else. This evidence supports the court’s findings
that Trowbridge “had the original Will in his safe shortly after its execution on
April 30, 2012,” that Christal had a “photocopy,” and that “the original Will
could not be found” at Trowbridge’s death.2 Appellant’s App. Vol. II pp. 9-10.
Accordingly, we affirm the probate court’s conclusion that the Estate is entitled
to the presumption that Trowbridge destroyed the will with the intent to revoke
it.
[17] Christal next argues that the probate court did not engage in the proper analysis
to determine whether she rebutted the presumption that the original will was
destroyed with the intent to revoke it. We agree. The probate court found that
Christal failed to rebut the presumption because she did not possess the original
1
On appeal, Christal argues that the probate court erred during the second hearing in admitting
Maschmeyer’s testimony because he and Christal had an attorney-client relationship. When Christal objected
on these grounds at the hearing, Maschmeyer argued that he and Christal did not have an attorney-client
relationship, as there was “no indication that he had ever accepted her as a client or that she believed he was
her attorney.” Second Hr’g Tr. Vol. II p. 31. The court ruled that Christal “waived” any objection because
she did not object to similar testimony from Maschmeyer at the first hearing. Id. at 32. We agree with the
court that Christal waived this issue for review.
2
The evidence shows that Trowbridge got a new safe after he executed his will. The probate court made the
following finding regarding this fact:
32) The safe wherein the papers were found was a replacement to the original safe wherein the
original Will had been placed. The original Will had been given to a neighbor when the
replacement safe was acquired. The Court can find no relevant inference to be made from this
circumstance[.]
Appellant’s App. Vol. II p. 10 (emphasis added). Christal seizes on this highlighted language as
support for her argument that Trowbridge did not maintain possession or control of his will. However,
because the evidence shows that Trowbridge gave his safe to a neighbor (and not its contents), it
appears that the probate court meant to say “safe” instead of “Will.” The court should fix this
typographical error on remand.
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will. But this is not the issue. If Christal possessed the original will, then there
would be no need for the court to engage in the burden-shifting analysis in
Estate of Fowler. Instead, as Christal points out, evidence that can rebut the
presumption that a will was destroyed with the intent to revoke it includes (1)
evidence of the testator’s intent when he allegedly revoked the will, (2) evidence
relating to the ability of the testator to obtain access to the will during the
alleged period of revocation, (3) evidence relating to the competency of the
testator during the alleged period of revocation, and (4) evidence relating to the
ability of interested parties to obtain access to the will before its disappearance.
In re Estate of Borom, 562 N.E.2d 772, 776 (Ind. Ct. App. 1990); see also 26 Ind.
Prac., Anderson’s Wills, Trs., and Estate Planning § 2:44 (2019-2020 ed.) (“The
facts presented to rebut the presumption may or may not be sufficient,
depending on the circumstances. Facts such as that a testatrix never mentioned
revocation, and that her heirs had access and did enter her home were sufficient
to rebut the presumption of revocation arising from a torn will.” (citations
omitted)).
[18] Here, the record contains the following evidence that could rebut the
presumption:
• Trowbridge did not execute his will until after he and Christal were
divorced.
• Trowbridge continued to list Christal as the beneficiary of his accounts as
recently as the year before he died.
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• According to Christal, Trowbridge and his brother did not have a close
relationship while they were married.
• Even though the property-settlement agreement required Christal to
quitclaim her interest in the house on Tucker Avenue, Christal never did
so, and Trowbridge took no action.
• Christal was never informed that Trowbridge had revoked his will.
• Michael had “no idea[]” why his brother would have revoked his will.
• Michael had access to Trowbridge’s house while he was hospitalized,
and “right after” Trowbridge died, Michael went to his house and
opened the safe.
• When Christal filed the petition to probate the will, Michael asked
Maschmeyer to research whether a copy of a will could be probated
because he had “heard” that a copy wasn’t good enough.
• Michael stood to gain more under intestacy laws if the will was not
probated.
• According to Christal, she had no doubt that Michael would have
destroyed any will found in the safe.
But because the probate court did not engage in the proper analysis, it has not
had the opportunity to determine, in the first place, whether these facts are
sufficient to rebut the presumption. We therefore reverse on this issue and
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remand with instructions for the court to enter a new order applying the proper
analysis. No new hearing is necessary.
[19] Affirmed in part and reversed and remanded in part.
May, J., and Robb, J., concur.
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