M Civ JI 170.32 Will Contests: Revocation - Presumption from Failure to Produce Original Will Retained by Decedent

A will that is known to have existed and to have been in the decedent’s custody during [ his / her ] lifetime and which cannot be found at [ his / her ] death raises a presumption that such will was destroyed by the decedent with the intention of revoking it.

In determining whether this presumption has been overcome, you may take into consideration all the surrounding circumstances which would tend to show that there was no intent to revoke, including what the decedent said.

Note on Use

This instruction should be preceded by M Civ JI 170.31 Will Contests: Revocation of Will by Physical Means.

Comment

Where the will cannot be found at the death of the testator and especially where the will is not traced out of possession of the testator, the presumption of revocation can be met by declarations of the testator, and whether or not the presumption is rebutted is a question of fact. In re Taylor’s Estate, 323 Mich 101; 34 NW2d 474 (1948); In re Estate of Thomas, 274 Mich 10; 263 NW 891 (1935); In re Keene’s Estate, 189 Mich 97; 155 NW 514 (1915); In re Bradley’s Estate, 215 Mich 72; 183 NW 897 (1921); In re Smith Estate, 145 Mich App 634; 378 NW2d 555 (1985).

History

M Civ JI 170.32 was added January 1984.​