Legal Definition
If the testator’s 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, it is presumed that the testator destroyed the will with intent to revoke it. This presumption is a presumption affecting the burden of producing evidence.
Basic Definition
Section 6124: Presumes a will was revoked if it was last in the testator’s possession but cannot be located after death.
In-Depth Overview and Use Cases
This section creates a rebuttable presumption that a missing will was intentionally destroyed by the testator if it was last in their possession and they were competent at death. This shifts the burden to those asserting the will’s existence to produce evidence contradicting this presumption. For example, they might argue that the will was lost or stolen, rather than destroyed.
Application & Relevance
Section 6124 is critical for attorneys contesting or defending the existence of a will in probate disputes. It provides a foundation for arguing either side in cases where a will is presumed revoked but heirs or beneficiaries claim otherwise. Attorneys must present evidence to either affirm or refute the presumption during probate proceedings.
Legal Scenario
Trust Disputes
Probate Code Impact
Parties may cite to Section 6124 in trust disputes to analagously apply it to situations where a trust is missing after death, with the presumption that the decedent destroyed it. Contestants may have to rebut this presumption with evidence.
Legal Scenario
Breach of Fiduciary Duty
Probate Code Impact
If a fiduciary is suspected of mishandling or hiding a will, Section 6124 allows for rebutting the presumption of revocation by proving the will was intentionally destroyed by the decedent.
