Estate of Margaret Allen Kisner

Case Number

25PR00031

Case Type

Hearing Date / Time

Mon, 03/10/2025 - 08:30

Nature of Proceedings

Petition for Probate and Letters Testamentary

Tentative Ruling

Probate Notes:

Appearances required.

The following is noted for the Court at the hearing.

Original Will suspect.  An original will and any codicil to that will must be lodged with the Court. (Prob. Code, §§ 8200, et seq.)  It is insufficient to attach a copy of the will to the petition without lodging the original.

The allegations in the petition request the will be annexed, but claim the proposed executor is named in the will.  This creates confusion in the pleading, because there is no reason to annex the will, unless the will is lost. There is a will that was lodged with the Court on January 21, 2025, but it is suspect whether the will is original or a copy.

If the original is lost, petitioner must amend the Petition to provide an attachment alleging why the presumption of destruction in Probate Code section 6124 should not apply, or provide evidence overcoming the presumption of destruction.

Petitioner may overcome this presumption with substantial evidence that shows the Court some supported fact that the Decedent did not destroy the will.  Petitioner is referred to the following authority to understand the evidence required to overcome the presumption of destruction in Probate Code section 6124:

• Estate of Trikha (2013) 219 Cal.App.4th 791, 804 [substantial evidence required to overcome presumption]
• Lauermann v. Superior Court (2005) 127 Cal.App.4th 1327, 1333 [Duplicate Original not usually sufficient]