You may be surprised to learn that your Will could be revoked without you even knowing it.  Under Probate Code section 6124, if your original Will was in your possession at the time of death and if the original Will cannot be found, the law presumes that you destroyed the Will with the intent to revoke it. 

Sometimes this may be true, someone may decide to destroy his Will for the purpose of revoking it.  But the presumption applies even in cases where the original Will may just be lost or misplaced (or intentionally destroyed by someone else)—resulting in an unintended revocation of the Will.

This presumption of revoked Will sounds harsh, and often has an unintended result, but there is a bright side to this law.  The presumption is not absolute.  In fact, it is one of the easier presumptions to overcome because it only affects the “production of evidence” rather than a “presumption of proof.”  What exactly does that mean?  The Fourth Circuit Court of Appeal’s recent decision in Estate of Trikha helps explain this important difference and provides a roadmap for overcoming this harsh presumption of revocation.

Estate of Trikha presents a tragic set of facts between a man, his wife, and kids from a prior marriage.  The wife (Suchitra Trikha) instituted a divorce action because she did not want her husband (Satish Trikha) to talk to his kids from a prior marriage.  Suchitra, however, offered to reconcile if Satish would agree to disinherit his prior children and leave his entire estate only to his children from the current marriage.

Less than a month before Satish’s death he had a Will prepared where he left his estate equally among his four children.  During the course of the divorce proceedings, matters became increasingly difficult and Satish eventually killed himself while staying at a Hotel.  Suchitra and her two children were the first to retrieve Husband’s affects and the papers from his car, but she testified the original Will was not located.  Of course, Suchitra had a strong motive to destroy the original Will as it went against her desires.

The trial court noted that the Will contestant, Suchitra in this case, usually has the burden of proving Will revocation.  But a presumption of revocation arises under Probate Code Section 6124 where an original Will, last in possession of decedent, cannot be found.  That places the burden on the Will proponent (Satish’s first son, Satish, Jr. in this case) to prove the Will has NOT been revoked.

At trial, Satish, Jr. introduced evidence to show that both Suchitra and her children were first to have access to Satish’s papers, they had the ability to destroy the original Will, and they had the motive to do so.  Nevertheless, the trial court ruled in favor of Suchitra and held that the evidence presented was not enough to persuade the Court that Suchitra had in fact destroyed the original Will.

The Appellate Court disagreed.  Section 6124 specifically states that the presumption contained in that section is “a presumption affecting the burden of producing evidence”—not a presumption affecting the burden of proof.  What’s the difference? 

The Appellate Court explains that a burden of proof presumption requires a party to prove by a preponderance of the evidence that the fact is not true.  Whereas a burden of producing evidence is merely a preliminary assumption that goes away once evidence is produced to establish its nonexistence.

For example, in this case once evidence was produced showing it was possible the original Will was destroyed because the wife had ample opportunity and motive to destroy it, the assumption of revocation goes away.  The Court then has to decide whether to admit the Will to probate or not based on the totality of the evidence without any presumption against the Will proponent.

In other words, the burden of producing evidence is a much lower presumption (better understood to be a preliminary assumption of a fact).  The fact assumption goes away once any contrary evidence is introduced.  So the presumption of revocation is not absolute.  It can be overcome, and overcome rather easily so long as there is some contrary evidence to suggest the Will was NOT destroyed with the intent to revoke.