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Burden of Proof Has will been revoked?

Understanding the burden of proof when a will has been revoked under EC laws. Learn about statutory burden, presumption of non-revocation, and proof of lost will scenarios. Case studies such as Ashley v. Usher and Mingo v. Mingo provide valuable insights.

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Burden of Proof Has will been revoked?

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  1. Burden of ProofHas will been revoked?

  2. Statutory Burden -- EC § 256.152 • Applicant must prove testator did not revoke the will. • How prove a negative?

  3. Presumption of Non-Revocation • Ashley v. Usher – p. 172 • Source of will “normal” • Person to whom testator delivered it, or • Among testator’s valuable papers and • No suspicious circumstances

  4. Presumption of Revocation • Mingo v. Mingo – p. 175 • Testator possessed original will when last seen and it cannot be found after death. • Thus, presumption of revocation. • However, rebuttable by preponderance of the evidence.

  5. Proof of Lost Will -- EC § 256.156 • 1. Cause of non-production.

  6. Proof of Lost Will -- EC § 256.156 • 2. Court satisfied original cannot be produced by reasonable diligence.

  7. Proof of Lost Will -- EC § 256.156 • 3. Prove contents of will by testimony of someone who: • read the will, • heard the will read aloud, or • can identify a copy.

  8. In re Estate of Catlin – p. 177

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