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  • The "legal existence" theory for a lost will

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    The "legal existence" theory for a lost will

    Estate of Irvine v. Doyle, 101 Nev. 698, 710 P.2d 1366 (1985):

    Other jurisdictions with statutes similar to NRS 136.240(3), moved by these policy considerations, have construed the term "existence" in their statutes to mean "legal existence." A will is said to be in legal existence if it has been validly executed and has not been revoked by the testator. Thus, a will lost or destroyed without the testator's knowledge could be probated because it was in legal existence at the testator's death. See In re Eder's Estate, 29 P.2d 631 (Colo. 1934); In re Estate of Enz, 515 P.2d 1133 (Colo.Ct.App. 1973); In re Havel's Estate, 194 N.W. 633 (Minn. 1923); Matter of Estate of Wheadon, 579 P.2d 930 (Utah 1978).

    . . .

    In Fox, the New York Court of Appeals made the following pertinent statement:

    By requiring proof that a lost or destroyed will was either "in existence at the time of the testator's death, or was fraudulently destroyed in his lifetime", the Legislature merely intended to require proof that either the will had not been destroyed during the testator's lifetime or that, if destroyed during his lifetime, it had not been destroyed by him or by his authority. In other words, all that section 143 requires is proof that the testator himself had not revoked the lost or destroyed will, proof that would overcome the common-law presumption of revocation.

    In re Fox' Will, 174 N.E.2d 499, 504 (N.Y. 1961).

    We agree with this statement. At common law, when an executed will could not be found after the death of a testator, there was a strong presumption that it was revoked by destruction by the testator. Id. at 505; Matter of Estate of Wheadon, 579 P.2d at 932. NRS 136.240(3) codifies the common law rule and places the burden of overcoming the presumption on the proponent of a lost or destroyed will. Accordingly, we hold that the words "in existence" and "fraudulently destroyed" taken together convey the legislative intent to require the proponent of a lost or destroyed will to prove that the testator did not revoke the lost or destroyed will during his lifetime. Further, the question of whether a will was revoked is a matter to be decided by the trier of fact. See In re Killgore's Estate, 370 P.2d 512 (Idaho 1962).

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