### No. 80-72 

### INTHE SUPREME COURTOF THE STATEOFMONTANA 1980

INTHEMATTER OFTHEESTATE OF MABEL I. COX

Appeal from: District Court of the Tenth JudicialDistrict, Inand For theCounty of Fergus. Honorable LeRoyMcKinnon,Judgepresiding. Counsel of Record: ForAppellant: Parrish,Knopp and O'Hare, Lewistown,Montana Bradley Parrish argued,Lewistown,Montana ForRespondent: William Berger argued,Lewistown,Montana

Submitted: November 20, 

### 1980 Decided:

# BEc24

# 1980 Filed:

# EC2

## 4l$o$Mr. JusticeJohn C. Sheehy delivered theOpinion 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 The determinative question is whether a will, bearing unexplained markings through its text when discovered, has been revoked by cancellation pursuant to section 72-2-321, MCA.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 torevoke, unlessproven otherwise. Mabel Cox died on May 16, 1979, leaving six children as survivors. The decedent's holographicwill

was found in her bedroom nightstand the following day by respondent Richard Cox, proponent of thewill. The will is written entirely in decedent's handwriting with two different-colored inks, on a singlepage 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 allparagraphs 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 

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# 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 depositvalued atapproximately $2,500 apiece, one held injoint tenancy between decedent and each child except Richard; and household furnishings which would pass variouslyto allsixchildrenunder thewill. 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 thewill. 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 shortlypreceding 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 intentionswere 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 thewillappeal. 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 sufficientproof of anintent to revoke the will. The correct approach, appellant submits, is thatthepresence of themarkings

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 torevoke. InreKernper's Estate (1944), 157 Kan. 727, 145P.2d 103. We agree. The evidentiary burdens for will contests are prescribed by section72-3-310, 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 initialburden hasbeen 

### met. The focal point of the case 

### is the contestant's burden to prove revocation. Revocation by actmay be effected only pursuant tosection72-2-321(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 hispresence and by hisdirection." 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 controllingfactor, rather than the severity of the act which manifests that intent. The form and extentof the acts

are then unimportant as long as they constitute a physical token of the intent to revoke. Kemper, 145 P.2d at108. 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 questionwithin 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 inthiscloselyanalogous situation. 

### We therefore hold that where a will has been in the custodyof 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, at554. Page, The Law of Wills§ 29.140 at700- 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 at574. Proponent, at argument, emphasized three opponents' momentary possible access to the will andopportunity to destroy it on the evening of Mrs. Cox' decease. However, the fact that the will contestants had a fleetingopportunity totamper with thewilldoes not, of itself, overcome the presumption; but, rather is a circumstancewhich must be considered with other proof. Matter of Travers' Estate (1978), 121 Ariz. 282, 589 P.2d 1314. Here theDistrictCourtdetermined therewas no explanation for themarkings. 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 toprobate 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 toexecuteone. 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 willbe 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 intenttomake a new will, and thenew willmust be executed concurrently with or shortly after destruction of the old. Patten, 587 P.2d at 1309. None of these criteriahave been established. Reversed and remanded with instructionsto grant the petition for adjudication of intestacy and to deny thepetition for formalprobate.

We Concur:

Chief Justice

Justices 

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