San Diego Estate Planning Lawyer Blog
It’s called a last will and testament because the document is meant to serve as a final disposition of property upon death. When a person makes a new last will and testament, he or she thereby revokes of any previous testamentary instrument. But what happens if a person dies and it’s not clear whether or not he’s revoked his will? The California Court of Appeals recently addressed this situation in a case arising from a family tragedy.
Satish Trikha died in 2009. He was in the midst of a nasty divorce from his wife, Suchitra Trikha. The couple’s problems began in 2008, when Suchitra Trikha discovered her husband had resumed contact with two of his children from a prior relationship. Suchitra Trikha believed these other children were a “black mark” on her traditional Indian family. At one point, she offered to end divorce proceedings if Satish Trikha formally disinherited the two older children and placed his assets in a trust for the benefit of their own two children.
Satish Trikha checked into a Yorba Linda hotel on October 25, 2009. A hotel clerk found his dead body three days later. The coroner’s inventory of Trikha’s personal items recovered the room did not include either a suicide note or a will. Suchitra Trikha and her son, Neel Trikha, subsequently searched Satish’s car and later testified there were no legal documents inside.
After Satish Trikha’s funeral, his attorney produced a copy of a will signed just three weeks before the suicide. The original will was never found. The will made provisions for all four of Satish Trikha’s children. Suchitra Trikha’s contested the will’s probate. She maintained her husband destroyed the original. The probate court agreed and upheld the contest.
Overcoming Legal Presumptions
Satish Trikha, Jr., one of the children from his father’s prior relationship, appealed the probate court’s decision. The legal question was whether the trial court incorrectly applied California law governing the burden of proof in this case. This involves two distinct issues. First, there is a presumption that a will is destroyed if (1) it was last in the possession of the person who made it; (2) that person was competent until the moment of death; and (3) neither the original nor duplicate original can be found. If all three of these factors are present, there is a legal presumption that the will was destroyed “with intent to revoke it.”
This is only a starting point for the court’s analysis, however. Parties to a will contest may introduce evidence rebutting this presumption. And, in fact, the appeals court here found an “abundance” of such evidence. The testimony in probate court showed Satish Trikha “repeatedly expressed his desire to provide for his older children in his will,” and that he would not disinherit them even at the cost of his marriage. Furthermore, Suchitra Trikha had motive and opportunity to destroy the will herself.
That’s not to say she did destroy the will. The appeals court was careful to explain that circumstantial evidence implicating Suchitra Trikha only rebutted the presumption that Satish Trikha destroyed his own will. This leads to the second issue, which the appeals court returned to the probate court for further consideration-whether Satish Trikha, Jr., can prove Suchitra Trikha destroyed the will.
Protecting Your Will
If you intend to revoke a previously signed will, it is best to consult with an experienced estate planning attorney who can draft a new will that will declare your old will revoked. If you have have any questions, contact San Diego estate planning attorney Scott C. Soady today.