No. 80-72 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

IN THE MATTER OF THE ESTATE 

OF MABEL I. COX 

Appeal from: District Court of the Tenth Judicial District, 

In and For the County of Fergus. 

Honorable LeRoy McKinnon, Judge presiding. 

Counsel of Record: 

For Appellant: 

Parrish, Knopp and O'Hare, Lewistown, Montana 

Bradley Parrish argued, Lewistown, Montana 

For Respondent: 

William Berger argued, Lewistown, Montana 

Submitted: November 20, 1980 

Decided: BEc 2 4 1980 

Filed: EC 2 4 l$o$ 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Appellant, Raymond Cox appeals from an order of 

the Tenth Judicial District Court, Fergus County, 

admitting the holographic will of Mabel I. Cox to 

probate. 

The determinative question is whether a will, 

bearing unexplained markings through its text when 

discovered, has been revoked by cancellation pursuant 

to section 72-2-321, MCA. We hold that such a will 

shall be presumed canceled by the testator with the 

intent to revoke, unless proven otherwise. 

Mabel Cox died on May 16, 1979, leaving six 

children as survivors. The decedent's holographic will 

was found in her bedroom nightstand the following day 

by respondent Richard Cox, proponent of the will. 

The will is written entirely in decedent's 

handwriting with two different-colored inks, on a 

single page of notebook paper. It is signed and dated 

May 30, 1973. The will consists of seven paragraphs 

listed down the page, plus an eighth paragraph slanted 

in the lower right-hand corner. Eight large X's have 

been drawn on the sheet such that all paragraphs except 

the slanted writing have markings through them or 

partially through them. Additionally, the words "Will 

and Testamony" (sic) which begin the will have been 

lined out three times. Thus, the will appears as 

follows: 
I 

f' y v -- - , - . -- -- - C ---I I 77 it, i $ -i .L-i_-q ,f Y~

- 

- 

J/ -: (7i ' i I Y.7'3 4, 

J'VtL:: ;\ Sq 1:; ,f 

2 - " i . i c - - - I: kpg; 11 '/GU-$ 

r . -- L. b . I/C L Gc * . -4~ 'a k4Jd A? ~~~~9~
The principal asset of the Cox estate is 

decedent's home, which would pass under the will to 

Richard Cox. Other assets include certificates of 

deposit valued at approximately $2,500 apiece, one held 

in joint tenancy between decedent and each child except 

Richard; and household furnishings which would pass 

variously to all six children under the will. 

On June 11, 1979, Raymond Cox petitioned the 

District Court for an adjudication of intestacy and 

appointment of a personal representative. Thereafter, 

Richard Cox petitioned the court for formal probate of 

the will. The petitions were consolidated for hearing. 

Neither party presented evidence at the hearing 

which explained the origin of the markings. The 

evidence was also inconclusive as to decedent's 

intended disposition of her estate. Testimony 

indicated that during the period shortly preceding her 

death, decedent had indicated that she wished to treat 

all children equally, and that she wished Richard to 

receive the house. Since the home comprised the 

largest portion of the estate, these expressed 

intentions were mutually exclusive. 

The District Court found that there was no 

explanation for the X's on the will. Based on this 

finding, the court concluded that there was no 

sufficient proof of an intent to revoke the will, and 

granted the petition for formal probate. Opponents of 

the will appeal. 

Appellant argues the court erred in concluding, 

based on the factual determination that there was no 

proof on the record explaining the presence of the 

markings, that there existed no sufficient proof of an 
intent to revoke the will. The correct approach, 

appellant submits, is that the presence of the markings 

on a will discovered in the custody of a decedent 

should give rise to a presumption that the acts of 

mutilation were peformed by the testator with the 

intention to revoke. In re Kernper's Estate (1944), 157 

Kan. 727, 145 P.2d 103. We agree. 

The evidentiary burdens for will contests are 

prescribed by section 72-3-310, MCA: 

". . . Proponents of a will have the 

burden of establishing prima facie 

proof of due execution in all cases 

and, if they are also petitioners, 

prima facie proof of death and venue. 

Contestants of a will have the burden 

of establishing lack of testamentary 

intent or capacity, undue influence, 

fraud, duress, mistake, or revocation. 

Parties have the ultimate burden of 

persuasion as to matters with respect 

to which they have the initial burden 

of proof. " 

This procedure is essentially a codification of the 

common law. See, In re Colbert's Estate (1904), 31 

972. 

Mont. 461, 466, 78 P. 971,/ There is no question that 

proponent's initial burden has been met. 

The focal point of the case is the contestant's 

burden to prove revocation. Revocation by act may be 

effected only pursuant to section 72-2-321(2), MCA: "A 

will or any part thereof is revoked: . . . (2) by 

being burned, torn, canceled, obliterated, or destroyed 

with the intent and for the purpose of revoking it by 

the testator or by another person in his presence and 

by his direction." 

Clearly, the acts of cancellation here are 

sufficient to revoke a will, although the writing 

remains legible and the signature has not been 

obliterated. Intent to revoke is the controlling 
factor, rather than the severity of the act which 

manifests that intent. The form and extent of the acts 

are then unimportant as long as they constitute a 

physical token of the intent to revoke. Kemper, 145 

P.2d at 108. 

This is a case of first impression insofar as it 

addresses the question of presumed intent within the 

context of a canceled will. Nevertheless, this Court 

has previously considered the same question within the 

destroyed/lost will context. Matter of Estate of 

Hartman (1977), 172 Mont. 225, 563 P.2d 569. 

Revocation by either destruction or cancellation is 

governed by section 72-2-321, MCA. The two means of 

revocation differ, in effect, only as a matter of 

degree; and we find the rationale of Hartman 

controlling in this closely analogous situation. 

We therefore hold that where a will has been in 

the custody of the testator and is discovered among her 

effects in a canceled or defaced condition, the 

testator shall be presumed to have done the act with 

the intent to revoke. Hartman, supra; Atkinson, Wills 

5 101, at 554. Page, The Law of Wills § 29.140 at 700- 

01. 

A will contestant may, in this and other similar 

instances, utilize this rebuttable presumption in 

meeting his burden of proving revocation. The 

proponent then has the burden of going forward with 

sufficient evidence regarding relevant factors and 

circumstances to rebut the presumption. Hartman, 563 

P.2d at 574. 

Proponent, at argument, emphasized three 

opponents' momentary possible access to the will and 
opportunity to destroy it on the evening of Mrs. Cox' 

decease. However, the fact that the will contestants 

had a fleeting opportunity to tamper with the will does 

not, of itself, overcome the presumption; but, rather 

is a circumstance which must be considered with other 

proof. Matter of Travers' Estate (1978), 121 Ariz. 

282, 589 P.2d 1314. Here the District Court determined 

there was no explanation for the markings. Proponent's 

conjecture regarding the origin of the markings aside, 

the finding is not a clearly erroneous evaluation of 

the record and may not be set aside. Rule 52(a), 

M.R.Civ.P. The presumed revocation, standing 

unrebutted, therefore controls. 

Proponent finally submits that if the will is 

deemed revoked, it should be admitted to probate under 

the doctrine of dependent relative revocation. Under 

the rules set forth in Matter of Estate of Patten 

(1978) , Mont . , 587 P.2d 1307, 35 St.Rep. 

1983, that doctrine clearly cannot apply here, where 

there is no superseding will and no evidence of any 

intent to execute one. 

This Court has not yet specifically adopted the 

doctrine of dependent relative revocation in a case 

requiring that consideration. Authorities indicate, 

however, that dependent relative revocation only 

applies where there is a clear intent of the testator 

that the revocation of an old will be conditional upon 

the validity of the new will. The condition must be 

proven by substantial evidence of probative value, and 

evidence of the intent cannot be left to speculation, 

supposition, conjecture or possibility. Further, there 

must be an immediate intent to make a new will, and the 
new will must be executed concurrently with or shortly 

after destruction of the old. Patten, 587 P.2d at 

1309. None of these criteria have been established. 

Reversed and remanded with instructions to grant 

the petition for adjudication of intestacy and to deny 

the petition for formal probate. 

We Concur: 

Chief Justice 

Justices /