dissenting.
In reaching its conclusion that the trial court properly denied probate of an original duplicate of Fowler’s will, the majority relies on the rule 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. Because I believe that the application of this presumption in the instant case overrides the clear intent of the testator and is questionable when the testator executes a duplicate original, I respectfully dissent.
The paramount objective behind the law of wills in Indiana is to ascertain and give effect to the intent of the testator. See, e.g., Matter of the Estate of Walters, 519 N.E.2d 1270, 1272 (Ind.Ct.App.1988) (“The court should always endeavor, if possible, to discover the intent of the testator and give effect thereto.”) Here, the uncontroverted evidence reveals that Fowler executed two identical wills, keeping one for herself and leaving the other for safekeeping with her attorney, naming John Bradshaw and his children as her intended beneficiaries. The record also reveals that Fowler’s attorney informed her that both wills were “equally valid” and that he informed all of his clients that they should contact him if they chose to revoke or modify their will so that he could take appropriate action with regard to the will in his possession. Finally, the evidence clearly indicates that Fowler was aware of this process, having contacted her attorney to modify her will on three or four other occasions, yet she never informed him of a desire to revoke her will or replace the Bradshaws with her nieces as the intended beneficiaries of the residuary of her estate.5
Nevertheless, the majority essentially concludes that the nieces should be the beneficiaries of Fowler’s estate because Fowler’s copy of the will could not be found at the time of her death, giving rise to a presumption of revocation. Other than the application of this presumption, however, nothing in the record supports the conclusion that Fowler desired to revoke her will.6 In fact, the evidence in the present case clearly indicates that Fowler did not intend to revoke her will. By executing two original copies of the will, Fowler willingly established, and repeatedly employed, a procedure by which she could easily revoke or modify her will, while at the same time safeguarding it against inadvertent loss. Since Fowler did not utilize that process in the present case, I cannot conclude that she intended to revoke her will.
Furthermore, I question the continuing validity of the presumption that a lost original *744demonstrates the testator’s intent to revoke a will, especially when another executed original exists.7 The rule relied on by the majority was first enunciated more than 100 years ago when there was a clear distinction between an executed original “ribbon copy” and a duplicate “carbon” copy. Today, as the majority notes, technology has made the production of duplicates common place and makes it difficult and, in some cases, impossible to discern which is the actual “original.” Additionally, the execution of an identical original will enables an individual to establish a safeguard against the inadvertent loss of the other copy. Given the fact that Fowler executed both documents and had ample opportunity to announce her intention to revoke prior to her incapacitation, I cannot conclude that the fact that one of the documents was not found indicates that she desired to change her intended beneficiaries.8 By applying the presumption in the present case to deny probate of an independently executed, duplicate original, we fail to fulfill our duty to “endeavor ... to discover the intent of the testator and give effect thereto.” Under these circumstances, I would reverse the decision of the trial court and hold that Fowler’s will is valid.
. The majority attempts to brush this fact aside by stating that Fowler could not notify her attorney of her intention to revoke in the present case because she was incapacitated by a stroke. The majority fails to realize, however, that since she was incapacitated, she similarly could not have revoked the will in her possession at that time. See Barnes v. Bosstick, 203 Ind. 299, 302, 179 N.E. 777, 778 (1932) (testator who became mentally incompetent not capable of revoking will).
. The majority notes that Fowler's neighbor, Glen Gregerson, testified that Fowler did not like the Bradshaws because they borrowed some money from her and refused to repay it. As the majority correctly notes, however, such testimony constitutes inadmissible hearsay. More important, I fail to understand how the fact that the Bradshaws owed Fowler money would have necessarily motivated her to exclude them from her will. Since the Bradshaws were to receive the bulk of Fowler’s estate, any money that they owed her most likely would have returned to them.
. The presumption relied on by the majority does not distinguish between lost and mutilated wills. See McDonald v. McDonald, 142 Ind. 55, 82, 41 N.E. 336, 345 (1895) (presumption arises when will not found after death or if will is found in a defaced or mutilated condition). Clearly, the presumption should apply in the second circumstance, i.e., when the testator mutilates the will in her possession, it should work as a revocation of the other executed will. However, where the will in the testator’s possession simply cannot be found and there is no evidence indicating that the testator desired to revoke her will, as here, application of the presumption tends to defeat the testator’s intent. This is particularly true when the testator was incapacitated and institutionalized for a long period of time before her death, allowing other interested parties ample opportunity to gain access to her copy of the will.
. I also note that several other jurisdictions have concluded that the existence of an executed, duplicate will overcomes or substantially weakens the presumption of revocation. See, e.g., Stiles v. Brown, 380 So.2d 792, 796 (Ala.1980) (presumption of revocation overcome by evidence that lawyer informed testator that executed duplicate must be destroyed to revoke, that testator never attempted to destroy duplicate and will contestant had access to will); Payne v. Payne, 229 Ga. 822, 194 S.E.2d 458, 461-62 (1972) (will stating that it had been executed as a duplicate "lest the original became misplaced” overcame presumption that original had been destroyed with intent to revoke); Matter of the Estate of Shaw, 572 P.2d 229, 231-32 (Okla.1977) (presenting executed copy of will for probate overcomes presumption of revocation arising from loss or failure to find testator’s copy).