In re Estate of Marc R. Beauregard, 456 Mass. 161, 921 N.E.2d 954 (2009) MARSHALL, C.J. Steven D. Knight appeals from a decree than one century we have recognized the presumption of the Probate and Family Court dismissing his petition as evidentiary, not an affirmative defense that must be for probate of the will of Marc R. Beauregard (decedent). pleaded or otherwise invoked by the opponents. See The decedent died at the age of forty years, unmarried Aldrich v. Aldrich, supra; Newell v. Homer, 120 Mass. 277, and childless, leaving his parents as his sole heirs and 281 (1876). See 3 W. Page, Wills, supra at 5 29.139, at next of kin. After his death on July 19, 2003, a judge 845 ("if a will which was in the custody of testator, or to in the Probate and Family Court appointed Raymond L. which he had ready access cannot be found, the burden Beauregard (Beauregard), the decedent's father, as of proof is upon the proponent to show that it was not administrator of his estate. Subsequently Knight, who had destroyed by testator with the intention of revoking it"). the same residential address as the decedent, filed a peti- Knight knew he did not have the original will; he was on tion for probate of a "copy of a will." He contended that a fair notice that the presumption would apply.... document dated June 11, 2003, which bequeathed signifi- cant assets to Knight, was a copy of the decedent's last will ... in [the] "absence of a statutory provision to the con- and testament. Beauregard, the decedent's mother, and his trary, the preponderante of evidence standard is the four siblings filed objections to the petition.... standard generally applied in civil cases". Because of "the other plausible explanations for a will's absence," The trial judge found that the decedent had executed the presumption should not "be such a strong one" that a will on June 11, 2003, and had himself retained the clear and convincing or another higher burden is re- original. Despite the objectors' contention that the will quired to rebut it. Restatement (Third) of Property (Wills was a forgery or not properly executed, the judge found and Other Donative Transfers), supra.... that the will had been witnessed by two persons in ac- cordance with G. L. c. 191, $ 1, and was otherwise proper. Accordingly, the proponent of a will that has been traced Five weeks after the execution of the will, the decedent to the testator's possession (or to which the testator had was murdered. ready access) but cannot be found after his death must Because Knight proffered only a copy of the decedent's demonstrate by a preponderance of the evidence that the testator did not destroy the will with the intent of re- will, the judge applied the evidentiary presumption that voking it. Whether the evidence is sufficient to meet this "where a will once known to exist cannot be found after burden is determined by the facts and circumstances in the death of the testator, there is a presumption that it was destroyed by the maker with an intent to revoke it." each case. See Matter of the Estate of Leggett, 584 So. 2d Miniter v. Irwin, 331 Mass. 8, 9 (1954), quoting Smith v. 400, 403 (Miss. 1991), quoting Adams v. Davis, 233 Miss. Smith, 244 Mass. 320, 321 (1923). The judge concluded 228, 238 (1958) ("It is difficult to lay down any general that Knight had failed to rebut the presumption, and rule as to the nature of the evidence which is required to dismissed his petition. Knight appealed.... rebut the presumption of destruction"). It is not neces sary that the proponent establish that the will was in When a will is traced to the testator's possession or to fact accidentally lost or destroyed, or that it was wrong- where he had ready access to it and the original can- fully suppressed by someone who was dissatisfied with not be located after his death, there are three plausible its terms. The presumption is rebutted if a preponder- explanations for the will's absence: (1) the testator de- ance of the evidence demonstrates that the testator did stroyed it with the intent to revoke it; (2) the will was not intend to revoke his will, regardless of whether the accidentally destroyed or lost; or (3) the will was wrong- proponent can demonstrate what may ultimately have fully destroyed or suppressed by someone who was dis- become of the will. satisfied with its terms. Restatement (Third) of Property (Wills and Other Donative Transfers) $ 4.1 comment j In this case, the judge concluded that he "could not draw (1999). Of these, Massachusetts law presumes the any inference that the will was accidentally lost by the first-that the testator destroyed the will with the in- decedent." We do not read this to mean that the judge tent to revoke it. Smith v. Smith, supra. ... Knight argues required Knight to prove what had become of the origi- that the presumption should not apply in this case be- nal or that the judge did not consider evidence tending cause the will opponents failed to raise it in their plead- to show that the deceased did not destroy the will with ings or at trial. The argument is without merit. For more the intent to revoke it. It is apparent that the judge con- sidered all the evidence and made findings sufficient to (continued)