Insights

In Estate of Beauregard, SJC-10455 (Feb. 22, 2010), the Supreme Judicial Court affirmed the dismissal of a petition to probate a copy of the testator's will.

The testator was murdered July 19, 2003. He was 40 years old, unmarried, and childless. Five weeks prior to his death, he had executed the will. The original of the will could not be located after his death. In this circumstance, when a will is traced to the testator's possession (as opposed to when the will is traced to a relative, for example) or to where the testator 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 the will 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.

Determining which explanation applies is fact intensive, but the presumption in Massachusetts is that the testator destroyed the will with intent to revoke it unless the proponent can rebut this presumption by a preponderance of the evidence. That is, the presumption is rebutted if a preponderance of the evidence demonstrates that the testator did not intend to revoke his will, regardless of whether the proponent can demonstrate what may ultimately have become of the will.

Here, the SJC explained that although the facts could have been weighed differently and a different conclusion could have been reached, the probate court's interpretation of the evidence and finding that the proponent had failed to rebut the presumption of revocation was not clearly erroneous.