Significant Evidence that Testator did not Destroy his Will Ends the Presumption that the Will was Revoked

September 19, 2013 | Bulletin No. 1037852.1

In Estate of Trikha (--- Cal.Rptr.3d ----, Cal.App. 4 Dist., September 13, 2013), a California court of appeal determined whether a will signed by a man shortly before he committed suicide, but which could not be found after his death, should be considered revoked.  The court ruled that even in the absence of proof that someone other than the testator took or destroyed the will, significant evidence allowing for that possibility removes the presumption that the will was revoked.


Satish Trikha ("Satish") committed suicide in 2009.  At the time of his death, he was married to Suchitra Trikha ("Suchitra").  Satish and Suchitra had two children together, Neel and Rishi.  Satish also had two children from a prior relationship, Sharmilla and Satish, Jr.  The mother of Sharmilla and Satish Jr., also had another son, Charles.  Suchitra was unhappy to learn, after marrying Satish, that he previously fathered other children and demanded that he have no contact with those children and that he disinherit them.  When Satish refused to do, Suchitra filed for divorce.

In the month prior to his death, Satish hired an attorney to draft a will with provisions to provide for all of the aforementioned children, dividing his estate among all five of those children as well as two grandchildren.  Satish signed his will in the presence of his attorney three weeks before his death and took the document with him as he left the lawyer's office.  Satish’s copy of the will, however, could not be found after his death.

Satish Jr. and Charles brought a probate action asserting that the original will was lost or stolen.  Suchitra contested the action claiming that since the will could not be found, it must be presumed that Satish destroyed it prior to his death, thereby revoking it.  That would mean that Satish died intestate, and that Suchitra, as his spouse, would therefore receive his entire estate.

The court ruled that Satish Jr. and Charles failed to establish that the will was stolen or destroyed by someone other than Satish.  Therefore, it was presumed that Satish did destroy and revoke his will.  Satish Jr. moved to vacate the judgment and the court denied the motion.  Satish Jr. appealed.


The trial court based its judgment on Probate Code Section 6124 which creates a presumption that if a will cannot be found after a testator's death, and the will was last in the testator's possession and the testator was competent until death, that the testator destroyed the will with the intent to revoke it.  Evidence Code Section 604 further explains the burden of proof for establishing such a presumption.  The effect of the presumption, according to Section 604, is that it is "presumed fact unless and until evidence is introduced which would support a finding of its nonexistence."

Here, the appellate court said, the trial court failed to impose the correct burden upon Satish Jr., which was not to prove that the will was not destroyed by Satish, but rather to introduce evidence to support that finding.  Quoting case law, the court noted that "the effect of the rebuttable presumption of revocation of a will is prima facie only; it exists only until rebutted by substantial evidence."  Thus, the presumption of revocation automatically disappears when the will's proponents introduce substantial evidence.

In fact, Satish Jr. "produced an abundance of substantial evidence" to that effect.  That evidence included the father's professed desire to provide for all his children in his will, that he refused Suchitra's demand to disinherit his other children, and that shortly before his death he drafted a will that provided for all the children.  Further, the court said, that following Satish's death, Suchitra had several opportunities to take the will from various locations where Satish may have placed it, and that she had clearly stated a motive for doing so: to disinherit Satish's other children.  The court found that this satisfied Satish Jr.'s burden to produce evidence that Satish did not intend to revoke his will by destroying it.

The trial court prejudicially erred when it ruled that Satish Jr. had not adequately persuaded it that Satish had not destroyed his will, rather than focusing on whether his evidence constituted substantial evidence negating the presumption of revocation.  The trial court should have ruled that Satish Jr. had produced substantial evidence to negate the presumption, and then shifted the burden to Suchitra to prove that Satish deliberately destroyed the will.  It was reasonably probable, the court added, that Satish Jr. would have received a more favorable result in the absence of the trial court's error.

The judgment was reversed and remanded for a new trial consistent with the principles of this opinion.


If you have any questions concerning the content of this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.

Linda M. Monje | 661.864.3800