Revocation of Wills

Question 1

Who bears the burden of proving that the testator did not revoke the will?

Answer 1

The will proponent bears the burden of proving that the testator did not revoke the will. The will proponent is aided by the presumption of continuity, i.e., that the will had a continuous legal existence. If there is any evidence that the testator may have revoked the will, the will proponent bears the burden of proof of the will’s validity.

Question 2

What three elements are needed to probate a lost will?

Answer 2

Three elements must be established in order to probate a lost will:

(i) due execution of the will must be proved by the testimony of at least one attesting witness,
(ii) the cause of non-production of the will must be proved to overcome the presumption of revocation, and
(iii) the contents of the will must be substantially proved by the testimony of a credible witness who has read the will, has heard it read, or can identify a copy of the will. .