Massachusetts Probate Cases Involving a Lost Will: Evidentiary Presumptions Rise Again
What happens in Massachusetts when someone dies but their will can’t be found?
This question was recently addressed by the Massachusetts Supreme Judicial Court (SJC) in the Matter of the Estate of Marc R. Beauregard. Beauregard who died at age 40, unmarried, and childless, lived at the same address as Steven Knight.
Beauregard’s father was appointed as administrator of his estate, but Knight filed a petition to probate a “copy” of a will where significant property was left to Knight. Beauregard’s parents and siblings objected to Knight’s filing of the copy and litigation ensued.
The probate trial judge found Beauregard had, in fact, executed a will which had been witnessed by two persons in accordance with M.G.L. c. 191, § 1, and had kept the original himself. Five weeks after the will was executed, however, Beauregard was murdered. No will was found.
Remember, Knight proffered only a "copy" of Beauregard’s will, not the original. The judge applied 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." The trial judge concluded that Knight had failed to rebut the presumption that is was revoked, and thus dismissed Knight’s petition. The Appeals Court agreed with the trial judge before landing before the SJC..
The SJC reviewed the different approaches available when an original will cannot be located and then restated the MA position which presumes the testator destroyed the will with the intent to revoke it.
Thus, the burden to prove the will was lost was in this case was Knight's because "the proponent of a will that has been traced to the testator's possession (or to which the testator had ready access) but cannot be found after his death must demonstrate by a preponderance of the evidence that the testator did not destroy the will with the intent of revoking it."
Whether evidence is sufficient to rebut the presumption is determined by the facts and circumstances in each case. The burden, however, is to prove by a preponderance of the evidence--not that the will was, in fact, accidentally lost or destroyed, or that it was wrongfully suppressed by someone who was dissatisfied with its terms.
Thus, the presumption of revocation is rebutted if a preponderance of the evidence demonstrates that the testator did not intend to revoke his will. While the court clearly discussed the law and presumptions to be applied in this case (and upheld both the trial court and appeals court in its ruling), the opinion also states:
This is not to say that the facts in this case could not have been weighed differently. A copy of the will was discovered in the decedent's home. If he were competent, as the judge found, then he likely would have destroyed any copies, as well as the original, had he intended to revoke the will. Also, the temporal proximity between execution of the will and death provided little time for the decedent to change his mind. However, it is "not enough to show that a different conclusion might well have been reached."… Our examination of the evidence does not lead to the inevitable conclusion that the judge's findings, based on his view of the evidence and his evaluation of the witnesses' credibility, are clearly erroneous.
Takeaway Lesson: If you are going to rely upon a copy of a will in a MA probate matter, then you must be prepared to carry the burden of proof (by a preponderance of the evidence) that the original will was not revoked. Further, you better be prepared to offer both your best evidence and your best arguments to carry that burden. A finding against you, could leave you with nothing.
Additionally, if you have created a will:
Is it safe?
Do others know where to find it?
What about those who could benefit by destroying it? Can they find it?
What steps have you taken to assure your will holds up if a dispute arises?
