The Case of the Missing Will

A common scenario that a potential client faces is that their parent or loved one showed them a Will while they lived, yet, after their death they cannot that Will. Well, this presents a problem because generally speaking, in order to probate a Will, you must submit the Will with the Court.

In addition to this, Probate Code section 6124 states that if the testator’s will was last in the testator’s possession, that the testator was competent until death, and neither the Will or a duplicate original of the Will can be found after the testator’s death, then a presumption is created that the testator destroyed the Will with the intent to revoke it.

The effect of that presumption—if not rebutted—is that the testator revoked the Will, as discussed previously, a testator can revoke their Will by destroying the Will with the intent to revoke it.

However, there are several steps to go through before reaching the presumption. The first is that the testator remained competent the entire time until his death. The reason this is important is because if we presume that the testator revoked his Will, that must mean that he/she had capacity to do so at the time and since we don’t know when he/she revoked their Will it is possible it was at a time when he/she did not have capacity to do so, and therefore would not be a valid revocation.

The language regarding a duplicate original is also important. That is a technical term that means something different than a copy. You see, when you execute your Will, you can execute what is known as a duplicate original which is an exact copy of the Will you signed and keep, but also was executed with all of the same formalities required to validly execute a Will and therefore can be probated. Drafting attorneys tend to want to keep these at their office to prevent this exact scenario. So, if your loved one used an attorney to draft their Will, it is likely that attorney has a duplicate original that you can probate and use to avoid this presumption.

Now, turning to the presumption itself. Most of the time there is a legal presumption made that means there is a significant burden put on a party that ordinarily does not exist (whether it be a defendant has to prove via preponderance of the evidence or clear and convincing evidence that they did not do the wrongful act the plaintiff claims they did, or the plaintiff has to show through clear and convincing evidence that defendant did perform that wrongful acts that the plaintiff claims).

While the presumption under 6124 does create an additional burden on a petitioner, it is rather small. The reason is because this presumption is one that affects the burden of producing evidence. As Estate of Trikha, (2013) 219 Cal. App.4th 791, 802 states, this presumption can be rebutted easily. All you have to do to rebut the presumption is introduce some evidence that “support a finding of [the presumptions] nonexistence.”

So in the case of a missing Will you must introduce evidence that either the Will was not destroyed by the testator or the testator destroyed the Will without the intent to revoke it. An example I like to use is one in which two years before a testator dies their house burns down destroying all of their most important documents. When going into court you can then produce evidence that the testator kept all of their documents in their home in a specific location, and the Will likely was in that location, and a house fire broke out that burned all of those documents. That should be sufficient evidence for most judges to find that the presumption is rebutted.

However, it is a case by case factual finding, so if you have a case where Probate Code section 6124 applies to you, you should contact an attorney to see if you could rebut the presumption.