Missing and Presumed Revoked: Where on Earth is Allan Schenecker's Original Will?

Where a decedent’s original Will is last seen in his or her custody, and it turns up missing, the law presumes that the decedent destroyed it with the intent to revoke its terms. As with many presumptions, this particular presumption may be rebutted. But how? That is the question addressed by New Jersey’s Appellate Division In the Matter of Allan C. Schenecker, Deceased, decided on March 10, 2011.

Allan Schenecker was a successful businessman and property owner. He was divorced from his first wife in the 1970s and, from that time until his death, had an on and off relationship with his daughter, Stephanie Godfrey. He met Joan Bennett in 1988, with whom he had both a business partnership and romantic relationship. Mr. Schenecker purchased a home for them in Tinton Falls. 

On November 29, 2006, Mr. Schenecker executed a Will which gave Bennett the house, and gave everything else to Godfrey. Schenecker fell ill in January 2008, married Bennett in August 2008, and died on January 8, 2009. Shortly thereafter, Bennett received letters of administration for the estate as the surviving spouse, and Godfrey filed a Complaint seeking to admit the Will to probate and to have herself appointed Executrix as provided by the Will. Bennett argued that the Will had been revoked since the original was last in Schenecker’s possession, and was now missing.

 

In reviewing the credibility of the witnesses and the conflicting testimony, the trial judge found by clear and convincing evidence that Schenecker did not intend to revoke the Will.

 

In affirming that decision, the appellate court clarified how a proponent of a missing Will goes about overcoming the presumption of its revocation. Rather than looking at the circumstances under which the Will was lost, stolen or destroyed, the key issue is whether the decedent intended to revoke the Will. Here, Mr. Schenecker was found not to have that intent. He took steps to transfer the Tinton Falls house to Bennett, thereby providing for her as suggested by the Will. Further, he expressed during his lifetime the desire to care for his daughter and her children, up to and including the time when he was hospitalized and as his health deteriorated.

 

As with most of the cases reported in this space, the benefit of hindsight allows us to see a way to short-circuit this type of lengthy dispute: best to keep your original Will in a safe place or, in the alternative, your attorney’s office. And, if you intend to revoke it, do so in writing, signed and witnessed as provided by law.   

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