                                                                                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




      Court of Appeals of Indiana | Opinion 19A-ES-3022 | June 11, 2020       Page 2 of 15
      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


      Court of Appeals of Indiana | Opinion 19A-ES-3022 | June 11, 2020         Page 3 of 15
      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

      Court of Appeals of Indiana | Opinion 19A-ES-3022 | June 11, 2020         Page 4 of 15
              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.




      Court of Appeals of Indiana | Opinion 19A-ES-3022 | June 11, 2020         Page 5 of 15
[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
       Court of Appeals of Indiana | Opinion 19A-ES-3022 | June 11, 2020          Page 6 of 15
       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 . . . ;




       Court of Appeals of Indiana | Opinion 19A-ES-3022 | June 11, 2020         Page 7 of 15
        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;



Court of Appeals of Indiana | Opinion 19A-ES-3022 | June 11, 2020         Page 8 of 15
                                               *****


        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:
Court of Appeals of Indiana | Opinion 19A-ES-3022 | June 11, 2020             Page 9 of 15
                        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.
       Court of Appeals of Indiana | Opinion 19A-ES-3022 | June 11, 2020           Page 10 of 15
                                   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




       Court of Appeals of Indiana | Opinion 19A-ES-3022 | June 11, 2020            Page 11 of 15
       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.

       Court of Appeals of Indiana | Opinion 19A-ES-3022 | June 11, 2020                                Page 12 of 15
       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.


       Court of Appeals of Indiana | Opinion 19A-ES-3022 | June 11, 2020           Page 13 of 15
    • 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

Court of Appeals of Indiana | Opinion 19A-ES-3022 | June 11, 2020       Page 14 of 15
       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.




       Court of Appeals of Indiana | Opinion 19A-ES-3022 | June 11, 2020     Page 15 of 15
