Brief Fact Summary. Decedent’s daughter appeals a judgment admitting a copy of her father’s will to probate. His daughter contends that since the original copy was not found among his personal effects at the time of death that it is presumed to have been destroyed with the intent of revoking it.
Synopsis of Rule of Law. It is presumed that a missing will was destroyed by the testator with the intention of revoking it, however this presumption can be weakened and overcome by evidence.
The strength of the inference obviously would be dependent upon the control which the decedent possessed over the repository and the access which others had to it.View Full Point of Law
Issue. Did the trial court err in holding that there was clear and convincing evidence to overcome the presumption that decedent’s will, not found in his personal effects, had been destroyed with the intent to revoke it?
Held. No. Affirm. There was enough evidence; including daughter’s access to the will and her ability to benefit by its revocation decedent’s re-affirmation of his estate plan, and the instructions given to his daughter to take his papers to the Bank, to overcome the presumption of revocation.
Discussion. The strength of the presumption of revocation depends on the control that the decedent have over the place where the will was kept and the fact that others might have had access to it. The Court notes that the quantum of evidence required to overcome the presumption is not clearly established but that the evidence here was enough to weaken and overcome it.