Tentative Ruling: Estate of Gordon Wayne Boswell

Case Number

26PR00081

Case Type

Hearing Date / Time

Mon, 04/06/2026 - 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:

Lost will.  Petitioner admits the will attached to the petition is not an original, nor can an original will be located.  Petitioner submitted evidence in an attempt to overcome the presumption of destruction in Probate Code section 6124, but the evidence submitted likely does not rise to the level of “substantial” evidence to overcome the presumption.

Petitioner may overcome the presumption of destruction with substantial evidence that shows the Court some supported fact that the Decedent did not destroy the will.  Petitioner was 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]

To date, the only evidence submitted can be summarized as follows:

1. Decedent told a child that a copy of the will was on the Decedent’s computer, and that is where the proffered copy of the will was found.
2. Decedent never told anyone he destroyed the will.

These two items of evidence are insufficient, because the cases that have adjudicated this issue in published decisions focus on positive evidence that supports a fact of non-destruction, and the Court is Lauermann, supra, expressly stated that a duplicate of the original is not sufficient to overcome the presumption.