(dissenting).
I respectfully dissent. The trial court correctly applied Minn.Stat. § 524.2-509(a) (1980), and its findings are not clearly erroneous.
The majority properly notes that in deciding whether a decedent revived an earlier will the probate court is to examine all matters relevant to the decedent’s intent. I do not agree, however, that the three questions enumerated in the majority opinion are the relevant criteria for the probate court to consider.
The first question the majority directs the probate court to consider is: “Did the testator, at the time he revoked the later will, know whether the earlier will was in existence?” I do not comprehend the relevance of this question. Whether the testator “knew” the earlier will was in existence is irrelevant. The relevant consideration is whether the testator intended to revive the earlier will.
The second question that the majority directs the probate court to consider is: “Did the testator know the identities of persons with a natural claim on his bounty?” This question is a restatement of the requirement of testamentary capacity .outlined by this court in In re Estate of Healy, 243 Minn. 383, 386, 68 N.W.2d 401, 403 (1955).1
Although I agree that testamentary capacity is necessary to revive a will, I do not agree that the proponents of the 1964 will have the burden of establishing testamentary capacity. Minn.Stat. § 524.3^407 (1980) provides for the burden, of proof in contested will cases as follows:
In contested cases, petitioners who seek to establish intestacy have the burden of establishing prima facie proof of death, venue and heirship. Proponents of a will have the burden of establishing prima facie proof of due execution in all cases, and, if they are also petitioners, prima facie proof of death and venue. Contestants of a will have the burden of establishing lack of testamentary intent or capacity, undue influence, fraud, duress, mistake or revocation. Parties have the ultimate burden of persuasion as to matters with respect to which they have the initial burden of proof.
(Emphasis added.)
Although Minn.Stat. § 524.2-509(a) (1980) places the burden on the proponents of a will to show that the testator intended to revive a will, it does not shift the burden of proof with regard to testamentary capacity. Accordingly, the opponents to a will should have the burden of establishing lack of testamentary capacity. In the instant case, appellants did not prove that testator lacked testamentary capacity at the time the earlier will was revived.
*49The third question which the majority directs the probate court to consider is: “Did the testator, by action or nonaction, disclose an intent to make the disposition which the earlier will directs?”
I agree with the majority that the intent of the testator is the critical issue. However, I do not agree with the phrasing of this question. If a testator intends to revive an earlier will he must also intend that the earlier will dispose of his property; therefore the question is redundant. The probate court found that the testator did intend the first will to be effective, and I believe this determination to be sufficient.
Besides disagreeing with the content of the questions which the majority poses to the probate court, I also do not agree that it is appropriate for this court to pose specific inquiries to the probate court. The legislature intended to provide the probate courts with great latitude in examining the circumstances of a revocation to determine whether the testator intended to revive an earlier will. The specific inquiries which the majority directs the probate court to determine are, in my view, contrary to the legislative intent.
Finally, in reviewing a trial court’s factual determination, we must consider the evidence in the light most favorable to the prevailing party and uphold the determination unless it is clearly erroneous. In re Estate of Balafas, 293 Minn. 94, 96, 198 N.W.2d 260, 261 (1972).
At the outset, it should be noted that appellant concedes that decedent was mentally competent at all relevant times and does not claim he acted as a result of undue influence. After decedent was informed that the 1964 will had been found, he authorized his attorney to remove the 1975 will from the court files so that decedent might destroy it.
Significantly, the attorney was not directed to obtain the 1964 will. The appellate tribunal found this fact persuasive, and so do I. If decedent had not intended the 1964 will to be effective, it is unlikely , he would have allowed it to remain on file with the probate court. When decedent tore the 1975 will, he said to Raymond: “They maybe have lost [the 1964 will] yet. This will give us * * * some sort of an idea on my likes * * *.” This statement, and the simultaneous destruction of the 1975 will, surely indicates a preference for the 1964 will over the 1975 will. Decedent’s statement exhibits a concern for the safety of the 1964 will that is understandable in view of the probate court’s earlier misplacement of the 1964 will. From this concern for the 1964 will’s safety, decedent’s intent that the 1964 will be effective is inferrable. Under these circumstánces the probate court’s finding that decedent intended the 1964 will to take effect as executed was not clearly erroneous.
Because the probate court’s findings were not clearly erroneous, the probate court should be affirmed.
. This court stated in Healy that a testator will be found to have sufficient mental capacity to make a will if at the time of making the will the testator understands “the nature, situation, and extent of his property and the claims of others on his bounty or his remembrance, and he [is] able to hold these things in his mind long enough to form a rational judgment concerning them.” In re Estate of Healy, 243 Minn. 383, 386, 68 N.W.2d 401, 403 (1955). Howevér, since Healy this court has slightly changed the requirement of testamentary capacity so that “testamentary capacity requires only that the testator have capacity to know and understand the nature and extent of his bounty, as distinguished from the requirement that he have actual knowledge thereof.” In re Estate of Jenks, 291 Minn. 138, 140, 189 N.W.2d 695, 696 (1971).