The probate code includes many provisions that are not widely known by non-practitioners. There are many situations that occur when people pass away, and sometimes situations arise that the legislature feels the need to address so that if a particular situation arises again, it will be treated the same way every time into the future.
One of these provisions is the probate code 6124. This provision says that an individual is presumed to have destroyed her will if it cannot be found upon her death. This presumption affects the burden of producing evidence if there is a will contest.
Imagine a mom who dies with two children. Both children know that their mother executed a will 5 years ago, but neither has the original. Because there is no will, mom’s estate will be administered as though it was intestate (no will) even though both children know she had drafted the will. If there is a dispute between the children about the eventual disposition of the estate, then the child asserting that the will was NOT destroyed has the burden of proof. The code is forcing the moving party to prove a negative.
Does this make sense? It does if you think about it a bit. What could have happened, where is the will? There are two options here: 1. The will is lost, or 2. The will is destroyed. Probate Code 6124 does not preclude either result, all it says is that the presumption is that it was destroyed.
Destroying a will is one of two ways of revoking a will, with the other being by executing a new will. Because there is no will depository or registration, there is no way to confirm the destruction of a will unless pieces of it are found afterward.
If the child wanting to use the missing will can prove that it was not destroyed, such as by finding it, then the burden will be overcome.
