concurring.
I disagree with the majority’s determination that the presumption that Mecello destroyed the 1996 will with the intention to revoke it (animo revocandi) does not apply. The majority concludes that because Geringer gained access to the safe-deposit box after Mecello’s death, the 1996 will had been traced out of Mecello’s custody, making the presumption of revocation inapplicable.
The 1996 will was in Mecello’s possession and control until her death. Before her death, the will was last seen in her possession, and at no point during her lifetime was the will traced out of her possession and control. After Mecello’s death, the will could not be found. The presumption is Mecello destroyed the will with the intent to revoke it, but I believe the presumption of revocation was rebutted.
When a will is shown to have been made and left in the custody of the testator, if it cannot be found after his or her death, the presumption is that the testator destroyed it animo revocandi. Muse v. Stewart, 173 Neb. 520, 113 N.W.2d 644 (1962). The fact that the will cannot be found is regarded as tending to show that the testator destroyed it animo revocandi. Id. Thus, the doctrine applies where a will was last seen in, or traced to, the decedent’s possession, but cannot be found after his or her death. See, id.; In re Estate of Drake, 150 Neb. 568, 35 N.W.2d 417 (1948). See, e.g., In re Estate of Morgan, 389 Ill. 484, 59 N.E.2d 800 (1945); Stiles v. Brown, 380 So. 2d 792 (Ala. 1980); 79 Am. Jur. 2d Wills § 606 (1975 & Cum. Supp. 2001). See, generally, Williams v. Miles, 68 Neb. 463, 94 N.W. 705 (1903).
But the majority states that the presumption does not apply because the 1996 will was traced out of Mecello’s control after her death. The majority notes that we have stated that if the will is traced out of the testator’s custody, the burden is on the party *509who asserts a revocation to show that it came once more under the testator’s control, or was destroyed by his or her direction. Williams v. Miles, supra. The majority then concludes that because Geringer gained access to Mecello’s safe-deposit box after her death, the presumption of revocation does not apply because the will was traced out of Mecello’s possession and the burden was on Geringer to prove that the will was revoked by Mecello. I find such a conclusion illogical.
When a will is traced out of the possession of the decedent during his or her lifetime and cannot be found after his or her death, it is logical that the presumption of revocation either would not apply or would apply with less force because it is the decedent’s access to the will during his or her lifetime that provides the reason for the presumption to apply. If a testator had no access to the will, he or she would have been unable to destroy it with the intent to revoke it. See Hober v. McArdle, 173 Neb. 510, 113 N.W.2d 625 (1962).
But the majority’s holding that the presumption does not apply when the will is traced out of the decedent’s control after his or her death obliterates the doctrine of animo revocandi. When a person dies, he or she no longer has control over his or her property. Usually, someone is going to gain access to the property. In every case, a will can be traced out of the decedent’s custody after death. Thus, the holding of the majority leaves no situation under which the presumption can ever apply.
In cases in which a party had access to a will after the testator’s death, the issue is whether the presumption has been rebutted, and not whether it applies. See, e.g., Stiles v. Brown, supra. See, generally, 79 Am. Jur. 2d, supra. Further, courts have analyzed this issue in terms of whether the presumption was rebutted even when an interested person had access to the will before the testator’s death. See, e.g., Moore et al. v. Williams et al., 30 Tenn. App. 479, 207 S.W.2d 590 (1947); McClellan v. Owens, 335 Mo. 884, 74 S.W.2d 570 (1934). Indeed, in Muse v. Stewart, supra, we analyzed the issue in terms of whether the presumption had been rebutted when the proponents of a will contended that someone other than the decedent had access to and destroyed the will either before or after the decedent’s death.
*510Applying the above principles of law, I believe the presumption of revocation applies. Although Mecello is presumed to have destroyed the 1996 will with the intent to revoke it, this presumption is not conclusive and may be overcome by proper and sufficient proof that the testator did not revoke the will. Muse v. Stewart, 173 Neb. 520, 113 N.W.2d 644 (1962).
The evidence to overcome the presumption of revocation of a lost will must be clear, unequivocal, and convincing. Id. The burden is on the proponents, and the determination of the sufficiency of the evidence to overcome the presumption is for the court in the first instance. Id. But such a rule does not require evidence amounting to positive certainty, but only such as reasonably produces a moral conviction. In re Estate of Morgan, 389 Ill. 484, 59 N.E.2d 800 (1945). “[W]here the testimony all shows an attitude of mind and statements of the testator not only inconsistent with [a] revocation but contrary to it, courts are justified in concluding that the presumption has been rebutted.” Id. at 489, 59 N.E.2d at 802. Thus, we have explained that the “presumption of destruction animo revocandi is one of fact only. It governs in the absence of circumstances tending to a different conclusion, but may be overcome by circumstantial or other evidence to the contrary.” Williams v. Miles, 68 Neb. 463, 468, 94 N.W. 705, 707 (1903).
After the execution of the will, declarations of the testator are admissible for the purpose of proving that the testator did not destroy the will with the intention to revoke it. Id. See, also, Muse v. Stewart, supra. Also, the nature of the testator’s relationship with beneficiaries of the will and with those challenging the will are admissible. See In re Estate of Morgan, supra. Proof that the testator felt kindly or loving toward the beneficiaries under the will carries weight and tends toward the conclusion of nonrevocation of the will by the testator. 79 Am. Jur. 2d Wills § 628 (1975 & Cum. Supp. 2001). See, generally, In re Estate of Morgan, supra. Although the mere fact that a will contestant had access to the will after the testator’s death is not enough by itself to overcome the presumption, when such evidence is combined with other evidence that the testator did not destroy the will with the intent to revoke, the presumption can be overcome. See, Stiles v. Brown, 380 So. 2d 792 (Ala. 1980); *511McClellan v. Owens, supra. See, generally, In re Estate of Brown, No. 01A01-9809-PB-00471, 1999 WL 802718 (Tenn. App. Oct. 7, 1999) (reversing trial court’s finding that presumption had not been overcome). Likewise, standing alone, evidence that a duplicate will was retained in the custody of another person generally cannot act to rebut the presumption of revocation but may be combined with other evidence to rebut the presumption. See, generally, Stiles v. Brown, supra. Finally, it is not incumbent on the proponents to show the exact manner in which, or the particular person by whom, the will was destroyed. McClellan v. Owens, supra. Rather, it simply must be shown under the evidence as a whole that the will was not destroyed by the testator with the intent to revoke it. Id. See, also, In re Estate of Morgan, 389 Ill. at 487, 59 N.E.2d at 801 (“it is not necessary that the court be able to determine what happened to a will if there is evidence that indicates it was not revoked or cancelled by the testator”).
The Illinois Supreme Court found the presumption to be rebutted when a testator, shortly before death, made references to his will which indicated an unchanged attitude regarding the disposition of his property and when no evidence was provided to show why the testator would want to revoke his will. In re Estate of Morgan, supra. The presumption has also been overcome when it was shown that others had access to the will, the testator had close relationships to the beneficiaries of the will, and other items where the will was kept had turned up missing. Moore et al. v. Williams et al., 30 Tenn. App. 479, 207 S.W.2d 590 (1947). Further, the presumption has been overcome when a contestant to the will had access to it, the testator’s attorney kept a duplicate of the will, and the attorney told the testator that the duplicate must be destroyed if the testator ever desired to revoke the will. Stiles v. Brown, supra.
I believe that the evidence shows that Mecello did not destroy the 1996 will with the intent to revoke it and that the trial court was clearly wrong in determining that the presumption had not been rebutted. The record is replete with statements by Mecello that her will was in her safe-deposit box and that she desired Geringer to receive very little of her property. As the majority noted, 5 days before her death, Mecello told Mary Kitta that *512Geringer did not call or visit her. Mecello then stated to Mary Kitta that Geringer would be “a very surprised young man” because the will was signed, it was in the safe-deposit box, and the bank was going to handle it. Kitta testified that Mecello indicated to him that Geringer would get her house and nothing else.
Daryl Greger, a friend and neighbor of Mecello, testified that Mecello told him that she kept her will in her safe-deposit box. Greger also testified that Mecello was not very fond of Geringer and was reluctant to leave anything to him, but had mentioned that she would probably leave him the house and its contents. Shortly before her death, Mecello told Greger that she was leaving him her car. These statements are consistent with the terms of the 1996 will. Greger further testified that Mecello had once lost her keys to her safe-deposit box, had searched everywhere for them, and was extremely upset about the loss. The record reflects that on October 16, 1997, Mecello had the box redrilled and received new keys. Mecello told Greger that after she had the box redrilled, Geringer and his wife, Patricia Geringer, came to visit. Mecello told Greger that Patricia Geringer left the room for a period of time and that later that night, Mecello found the old safe-deposit box keys in plain sight inside a drawer.
Mary Ridge, Mecello’s neighbor, testified that Mecello kept her will in her safe-deposit box. Ridge testified that in October or November 1998, Mecello told her that Geringer would be surprised that he was going to get the house but that it would have to be sold. Mecello told Ridge that she was also leaving money to different charities. These statements are also consistent with the terms of the 1996 will. Ridge urged Mecello to register her will at the courthouse, but Mecello said she was afraid that Patricia Geringer, who is an attorney, would find a way to read the will at the courthouse.
Beverly Callahan, another friend, testified that when Samuel Mecello died, Mecello stated that she assumed Geringer would “ ‘get everything now.’ ” Callahan told Mecello that “ ‘[h]e don’t get it unless you say so, but you have to get a good lawyer and specify everything and make sure it was signed and put it in a safe place.’ ” Mecello responded to this by saying “ ‘Safe place, I got. I got a safe deposit box.’ ” Mecello later told Callahan that she had made a will and had placed it in her safe-deposit box.
*513Yvonne Hager, a neighbor, testified that in October 1998, Mecello gave her some paintings of plates Mecello had painted and stated that Geringer and Patricia Geringer would probably come and take everything in the house when she died. Mecello indicated to Hager that she did not want the Geringers to get everything. Mecello had spoken about her will to Hager in the past, but had not told Hager where it was. Hager was aware that Mecello had a safe-deposit box and stated how upset Mecello was when she lost the keys to the box.
After Mecello’s death, Geringer gained access to the safe-deposit box after arranging to be appointed special administrator. In his application for appointment of special administrator, prepared by Patricia Geringer, Geringer represented to the county court that he was an interested person as defined by Neb. Rev. Stat. § 30-2209(21) (Cum. Supp. 2000). Geringer then represented that he was named personal representative in the will or was otherwise a proper person to be appointed. But, at the time Geringer made these representations, he had not found a will. Further, Geringer’s testimony shows that Mecello never told Geringer that he would be appointed personal representative under a will and never told him that she had a will. I note that under Neb. Rev. Stat. § 30-2457 (Reissue 1995), a special administrator may be appointed on the application of any interested person. Under the definitions in § 30-2209, a stepson is not an interested person. An heir can be an interested person, but Geringer does not qualify as an heir. In order to meet the requirements to be appointed special administrator, Geringer would be required to be a devisee under a will or a person with priority to be appointed personal representative. See § 30-2209(3), (18), and (21). At the time Geringer made the application for appointment of special administrator, he had no knowledge that he met either of those requirements, yet he nonetheless represented to the county court that he did. The appointment was informal, and no notice was given to interested persons. The record reflects that members of the Kitta family lived in the area and would have been interested persons under § 30-2209(21). These were the proper parties to apply for appointment as special administrator.
Geringer and Patricia Geringer were the only people present when the safe-deposit box was emptied. Geringer later failed to *514timely file an inventory of the contents of the safe-deposit box with the county court. On March 8, 1999, a motion for inventory was filed. The court filed an order for inventory and report of special administrator on June 1. On June 30, the court entered an order to show cause which ordered Geringer to file appropriate documents or be removed as special administrator. Geringer finally filed an inventory on July 15. Geringer did not list the 1991 will in the inventory. Geringer filed an amended inventory on August 24, which listed the 1991 will, but did not include the note Geringer alleges was attached to the will. The county court made a factual finding that the signature on the note did not resemble Mecello’s signature on another document.
These facts rebut the presumption that Mecello destroyed the 1996 will with the intention to revoke it. The evidence clearly and convincingly supports the conclusion that 5 days before her death, Mecello still had a will in her safe-deposit box that she intended to have remain in effect. The record shows that Mecello was fond of certain beneficiaries under the will and continued to be close to those beneficiaries at the time of her death. Numerous witnesses testified regarding Mecello’s desire to limit the property that was left to Geringer. No evidence has been provided to show that Mecello changed her mind in this regard. I further note that Mecello did not contact either attorney Kolenda or the named personal representative First National Bank and ask that copies of the 1996 will be destroyed.
The record does not support the conclusion that within the 5 days before her death, Mecello changed her mind about her will, retrieved it from her safe-deposit box, and destroyed it. Rather, the record shows overwhelming support for the conclusion that Mecello had the 1996 will in her safe-deposit box and intended that it be in effect at the time of her death.
I believe Kitta has shown by clear and convincing evidence that Mecello did not destroy her will with the intent to revoke it and that the county court was clearly wrong when it determined otherwise. I would find that the presumption of revocation had been rebutted. After the presumption was rebutted, Geringer failed to sustain his position by a preponderance of the evidence. I would hold that the 1996 will could be admitted to probate if it was not revoked by a later instrument.
*515The majority did not address the effect of the note allegedly attached to the 1991 will which was dated May 9, 1998, and which stated, “This is my will____All others are Revoked!” Neb. Rev. Stat. § 30-2332(1) (Reissue 1995) provides that a will is revoked “by a subsequent will which, as is evident either from its terms or from competent evidence of its terms, revokes the prior will or part expressly or by inconsistency.” The county court found that the note was not listed on either of the inventories filed by Geringer and made a factual finding that the signature on the note did not resemble Mecello’s signature on another document. The note attached to the 1991 will is not sufficient to revoke the 1996 will. I would reverse, and remand with directions to admit the 1996 will to probate. Accordingly, I concur.
Hendry, C J., and Stephan, J., join in this concurrence.