There’s A Difference Between A Rebuttable Presumption And The Burden Of Producing Evidence.

Decedent committed suicide 25 days after writing his will leaving his estate to his various children, grandchildren and one other child of a previous wife. Decedent had possession of his original will, but no one could find it after his death. Several of the children filed petitions to probate a copy of the will, but decedent’s estranged wife filed a will contest, alleging decedent revoked his will by destroying it. Under intestate succession, the estranged wife would receive 100 percent of the couple’s community property as well as one-third of his separate property because they were still married when he died. Probate Code section 6124 provides that a testator is presumed to have destroyed a will with an intent to revoke it if the will was last in the testator’s possession. The trial court ruled the children’s evidence was not substantial enough to rebut the presumption. In reversing, the appellate court explained the difference between the burden of proof with a Rebuttable Presumption and the burden of producing evidence, and said the children could overcome the presumption by introducing substantial evidence tending to contradict the assumption the decedent destroyed his will with the intent to revoke it. The appeals court stated: “The trial court expressly declared in its statement of decision that it ‘weighed the evidence and credibility of the witnesses’ in finding the evidence ‘not substantial enough’ to overcome the revocation presumption, primarily because the court believed [the estranged wife’s] claim she did not destroy the will. Thus, the court evaluated whether [the children’s] evidence persuaded it that [decedent] did not destroy his will, rather than focusing on whether his evidence constituted substantial evidence negating the revocation presumption.” (Estate of Satish Trikha, Deceased (Cal. App. Fourth Dist., Div. 3; September 13, 2013) 219 Cal.App.4th 791.