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Foster v. Weitzel

The evidence presumably supported the probate court's finding that the decedent's 2009 will expressly revoked her 2008 will and was self-proving.

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Nancy Anne Gilbert died on November 27, 2009, after executing a will the same day. In January 2011, the decedent’s brother, appellee Arnold Weitzel, and the decedent’s only child, appellee Pamela McIlvaine, filed a petition to probate the will in solemn form. No caveat was filed to this petition. Two months later, appellant Louise Foster petitioned the probate court to probate in solemn form a copy of a will purportedly executed by the decedent in September 2008. Appellee Pamela McIlvaine filed a caveat to the Foster petition.

In October 2011, the probate court held a hearing which was not transcribed. At that hearing, the probate court first heard the case for the 2009 will. The probate court found that appellees Weitzel and McIlvaine had met their burden of proving the 2009 will was the true last will and testament of the decedent, that Foster had not shown by a preponderance of the evidence that the 2009 will was otherwise invalid, and that the 2008 will was revoked by the 2009 will’s revocation of all prior wills. The trial court ordered the 2009 will admitted to probate and issued letters of administration to appellees. The order also stated that the 2009 will expressly revoked all previous wills and was self-proving. A written order was entered on October 13, 2011, and appellants filed a notice of appeal.

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