In re Estate of Beauregard - 456 Mass. 161, 921 N.E.2d 954 (2010)

Rule:

When a will is traced to the testator's possession or to where he had ready access to it and the original cannot be located after his death, there are three plausible explanations for the will's absence: (1) the testator destroyed it with the intent to revoke it; (2) the will was accidentally destroyed or lost; or (3) the will was wrongfully destroyed or suppressed by someone who was dissatisfied with its terms. Of these, Massachusetts law presumes the first -- that the testator destroyed the will with the intent to revoke it. It is settled law that where a will once known to exist cannot be found after the death of the testator, there is a presumption that it was destroyed by the maker with an intent to revoke it. For more than one century Massachusetts has recognized the presumption as evidentiary, not an affirmative defense that must be pleaded or otherwise invoked by the opponents. If a will which was in the custody of testator, or to which he had ready access cannot be found, the burden of proof is upon the proponent to show that it was not destroyed by testator with the intention of revoking it. The presumption always arises when a will once known to exist is not found at the death.

Facts:

Petitioner, who had lived at the same address as a decedent, sought probate of a copy of the decedent's lost will. The administrator, the decedent's mother, and the decedent's siblings objected to the petition. The trial court dismissed the petition, applying the evidentiary presumption that “where a will once known to exist cannot be found after the death of the testator, there is a presumption that it was destroyed by the maker with an intent to revoke it." Petitioner appealed. 

Issue:

Did the trial court err in dismissing the petition? 

Answer:

No.

Conclusion:

The court affirmed the decree. The court held that the presumption in Massachusetts was an evidentiary presumption, not an affirmative defense; thus, the will opponents did not have to raise it in their pleadings or at trial. The court further held that the evidence was sufficient to support the trial court's conclusion. The decedent was young, healthy, and fully competent at the time of his death, so it would have been unlikely that he lost the original will accidentally. There was also little time for the decedent to lose his will or to give it to someone who suppressed or destroyed it against his wishes. Although the facts could have been weighed differently, the competency of the decedent and the temporal proximity of the creation of the will and his death supported the finding that the decedent destroyed the original will intending to revoke it.