M Civ JI 170.21 Will Contests: Lost, Destroyed or Otherwise Unavailable Will

The proponent of a [ lost / destroyed / otherwise unavailable ] will has the burden of proving:

(a) that the will was in existence;

(b) that it was executed in the manner required by law;

(c) all or part of the contents of the will;

(d) *(that the [ lost / destroyed / otherwise unavailable ] will revoked the previous [ will / wills ].

Note on Use

*Subsection be used in any case where a prior will is presented for probate.

This instruction should be preceded by the appropriate instruction or instructions on execution of a will.

Comment

MCL 700.3402. See also In re Francis Estate, 349 Mich 339; 84 NW2d 782 (1957).

The mandate of the predecessor statute (§149 of the Revised Probate Code) that a “lost, destroyed or suppressed” will could not be admitted to probate unless its execution and contents were established by at least two reputable witnesses is not continued in MCL 700.3402, which also replaces the word “suppressed” with “otherwise unavailable.”

History

M Civ JI 170.21 was added January 1984. Amended March 2001.​