There is a presumption under Probate Code section 6124 that the testator (a person who makes a will) destroyed the will with the intent to revoke it where the will was last in the testator's possession, the testator was competent until death, and neither the will nor a duplicate original of the will can be found after the testator's death. This presumption, however, can be rebutted by a production of evidence. Once evidence has been produced casting doubt on the presumed fact, the presumption disappears, leaving it to the party in whose favor it initially worked to prove the fact in question. Thus, this presumption only exists "unless and until evidence is introduced which would support a finding of its nonexistence."
In its recent decision on the Estate of Satish Trikha (-- Cal.Rptr.3d ---, Cal.App. 4 Dist., September 13, 2013), the Fourth Circuit Court of Appeals provides a roadmap for overcoming this presumption on will revocation.
Stay tuned for more on this topic on our subsequent blog.
*This blog entry was not written by an Attorney and should not be construed as professional legal advice.