Estate of Obernolte v. Caskey
91 Cal. App. 3d 124, 1979 Cal. App. LEXIS 1559, 153 Cal. Rptr. 798 (1979)
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Rule of Law:
The common law presumption that a will, last seen in the decedent's possession and missing after death, was revoked by the decedent is a rebuttable presumption affecting the burden of producing evidence, not the burden of proof. This presumption is overcome by substantial evidence showing it is 'equally probable' that the will was destroyed by someone other than the decedent or without an intent to revoke.
Facts:
- On October 17, 1974, Jennie Vessels Obernolte duly executed a will, leaving her estate in equal shares to her daughter (Dona Wilson), her two grandchildren, her sister, and two brothers.
- Obernolte took the original will to her apartment and stored it in a locked cedar chest to which only she and her sister had keys.
- Obernolte lived with a handyman, Vance Mayers, and had infrequent contact with her family, often expressing unhappiness with them.
- In November 1974, Obernolte told at least two people that she was tearing up her will so her family would have to 'fight for' her assets.
- Conversely, Obernolte expressed concern to others about the security of the will in her apartment.
- Eleven days before her death on December 21, 1974, Obernolte visited her attorney's office and frequently spoke with his secretary, but never mentioned destroying or changing her will.
- After Obernolte's death, Dona Wilson searched the apartment and found the empty envelope for the will in the cedar chest, but the will itself was missing and could not be located.
- Under the will, Dona Wilson would inherit one-sixth of the estate, but if Obernolte died without a will (intestate), Wilson would inherit the entire estate as the sole child.
Procedural Posture:
- A duplicate original of Jennie Vessels Obernolte's will was admitted to probate in the trial court.
- Dona Wilson filed a petition in the probate court seeking to revoke the probate of the will.
- The trial court denied Wilson's petition, finding that it was equally probable that someone other than the decedent destroyed the will.
- Dona Wilson, as appellant, appealed the trial court's order of denial to the California Court of Appeal.
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Issue:
Does substantial evidence exist to rebut the presumption of revocation when the evidence suggests it is 'equally probable' that a missing will was destroyed by someone other than the decedent?
Opinions:
Majority - Cobey, Acting P. J.
Yes. The presumption that a lost will was revoked is overcome where there is substantial evidence to support a finding that it is 'equally probable' the will was destroyed by someone other than the decedent. The court first determined that the presumption of revocation applies when a competent decedent's will was last in her possession but cannot be found after her death. Crucially, the court classified this as a presumption affecting the burden of producing evidence, which only requires the opponent to introduce evidence sufficient to support a finding of the nonexistence of the presumed fact. It does not shift the burden of proof. Evidence of 'equal probability' meets this standard. Here, substantial evidence supported such a finding: the decedent expressed concern for the will's safety, she never mentioned its destruction to her attorney or his secretary despite recent contact, and other persons, including petitioner Dona Wilson who stood to gain significantly from intestacy, had access or opportunity to access the will.
Analysis:
This case clarifies the evidentiary standard required to overcome the common law presumption of revocation for a lost will under the California Evidence Code. By classifying it as a presumption affecting the burden of producing evidence, the court significantly lowers the bar for proponents of a lost will. Instead of needing to prove by a preponderance of the evidence that the will was not revoked, they merely need to introduce enough evidence to make non-revocation 'equally probable.' This holding makes it easier to probate lost wills in situations involving suspicious circumstances or where individuals other than the testator had access and motive to destroy the will.
