## Facts

- Jennie Vessels Obernolte executed an original and duplicate original will in her attorney’s office, leaving her estate in equal shares to her daughter, two grandchildren, and siblings.
- The attorney retained one duplicate original in his office; Obernolte took the other original home and kept it in a locked cedar chest to which she and her sister had keys.
- Obernolte lived alone and was described as fearful and unhappy with family members, including her daughter.
- In the weeks before her death, Obernolte told at least two people she was tearing up her will so family would get nothing and would have to “fight for it.”
- Around the same time, she expressed concern about the will’s security and considered moving it to a different location in her apartment.
- Eleven days before her death, Obernolte visited her attorney’s office on business and spoke at length with the secretary but did not mention changing or revoking her will.
- After Obernolte died, a diligent search of the apartment and cedar chest did not locate the original kept at home.
- The attorney’s duplicate original was admitted to probate.
- The daughter petitioned to revoke probate, asserting the missing original created a presumption that Obernolte destroyed it with intent to revoke; the trial court denied the petition, finding it was equally probable any destruction was by someone other than Obernolte.

## Issues

1. Whether substantial evidence supported the trial court’s finding that it was equally probable the missing original was destroyed by someone other than the testator, rebutting the presumption of revocation arising from a missing will last in the testator’s possession.
2. Whether the presumption of revocation from a missing original will is a presumption affecting only the burden of producing evidence, such that it disappears once contrary evidence sufficient to support a nonrevocation finding is introduced.

## Decision

- The Court of Appeal affirmed the order denying revocation of probate.
- The court treated the missing-will presumption as affecting only the burden of producing evidence, not the burden of proof.
- The court held there was substantial evidence supporting the trial court’s inference that a third party could have destroyed or removed the original, rebutting the presumption of revocation.
- With the presumption rebutted, the trial court’s factual determination on revocation could not be disturbed on substantial-evidence review.

## Legal Principles

- When an original will last known to be in the testator’s possession cannot be found at death, a presumption arises that the testator destroyed it with intent to revoke.
- In California, that presumption is classified as a presumption affecting the burden of producing evidence; it does not shift the ultimate burden of proof.
- Once evidence is introduced that would support a finding the will was not revoked (e.g., loss or third-party destruction with opportunity and motive), the presumption drops out and the trier of fact decides revocation on all the evidence.
- On appeal, a trial court’s revocation-related findings based on circumstantial evidence are reviewed for substantial evidence; the appellate court does not reweigh competing inferences.

## Conclusion

The court upheld probate of the duplicate original will because evidence permitted the trial court to find that the missing original could have been destroyed or removed by someone other than the testator, rebutting the missing-will presumption of revocation and leaving a nonrevocation finding supported by substantial evidence.


Estate of Obernolte, 91 Cal. App. 3d 124 (Cal. Ct. App. 1979)