In a recent case the Estate of Satish Trikah, [219 Cal.App. 4th 791, 162 Cal.Rptr. 3d 175] Testator’s wife filed a will contest and opposed the petitions by son of a prior marriage to probate the will alleging that the testator had revoked the will by destroying it and the estate should pass by intestate succession. The son only had a copy of the unsigned will. The trial court following the old presumption that if there was no signed will it was presumed that the testator had revoked it. The appeals court reversed indicating as follows: 1) Son presented substantial evidence that testator did not destroy his will with intent to revoke it; 2) Son did not have burden of proof to convince trial court that testator did not destroy his will with intent to revoke it; and 3) Trial court’s error in placing the burden proof on son was prejudicial to son.
In essence, the court declared that once the son put forth proof that his father did not destroy the will with intent to revoke, then it was up to the trial court to balance the evidence pro and con on both sides as to whether or not the father did intend to destroy the will with intent to revoke it. It indicated that the presumption affecting the burden of producing evidence is not evidence but merely an assumption designed solely to help the trier of fact reach a determination. The presumption that the will had been destroyed or is not around does raise a presumption that it was destroyed with intent to revoke, however, in this case the son came up with evidence countering that assumption which the court considered substantial evidence to contradict the presumption that testator had destroyed his will with the intent to revoke. The evidence consisted as follows: Testator had repeatedly expressed his desire to provide for his children from a prior relationship, that testator had signed a will that provided for the older children only three weeks before his suicide, that testator had complained that his wife’s demand for him to disinherit his older children before he could reconcile with her was “cold and ruthless” and that wife had several opportunities to take the will and destroy it after testator’s suicide.