In Re Smith Estate

R. R. Lamb, J.

Petitioner, Helen Kehrwecker, appeals from the Ottawa County Probate Court’s order denying admission of a will and a codicil of Raymond N. Smith. The probate court found that the presumption of revocation applied to the decedent’s October 20, 1980, will and precluded its admission to probate. The court also held the presumption applicable to the November 22, 1980, codicil, finding that the codicil was wholly dependent on the prior will and had no significance in its own right. We hold that the codicil was a valid testamentary instrument and that the court erred in denying its admission to probate.

The decedent died on April 27, 1981, at the age of 81. He is survived by a son, Donald Smith, and a stepson, Donald Mochel. Petitioner and the decedent were close friends prior to decedent’s death. She visited him frequently and took him to the doctor for treatment of his diabetes. When the decedent was discharged from a stay in the hospital in February, 1980, he moved into petitioner’s home and resided there until his death. A close relationship developed and the two planned to marry on March 17, 1980, but decedent’s illness prevented the marriage. During the course of their relationship, decedent purchased several items for petitioner and also gave her substantial real and personal property.

Decedent executed several wills during the latter years of his life. On March 10, 1980, he executed a new will, revoking a 1977 will, under which he bequeathed his entire estate to petitioner, with the exception of four lots of real estate. On October 20, 1980, a new will was exe*637cuted under which petitioner was to receive one-half of the residual estate. On November 22, 1980, decedent executed a codicil which made a change in a minor bequest and expressly ratified the remaining provisions contained in the October 20, 1980, will.

A search of the decedent’s personal effects following his death failed to produce the original October 20, 1980, will. A copy of the will was found, along with the original November 22, 1980, codicil. Petitioner’s petition to admit both documents to probate was denied. She appeals as of right.

The probate court correctly recognized the common-law presumption of revocation which states, "that where a will cannot be found at the death of the testator upon proper search being made, and especially where the will is not traced out of the possession of the testator, it is to be presumed that it was destroyed by him animo revocando" In re Taylor’s Estate, 323 Mich 101, 107; 34 NW2d 474 (1948). The burden is upon the proponent of the lost will to show facts or circumstances which overcome the presumption of revocation. In re Estate of Bernard Thomas, 274 Mich 10, 14; 263 NW 891 (1935). The presumption can be met by declarations of the testator, and whether or not the presumption is rebutted is a question of fact. Taylor, supra, p 108.

The probate court found that petitioner failed to overcome the presumption as to the October 20, 1980, will. We find that conclusion erroneous because, effective November 22, 1980, the codicil replaced the October 20, 1980, instrument and became the testator’s only valid will.

The Revised Probate Code defines a "will” to include a "codicil and any testamentary instrument which merely appoints an executor or re-*638yokes or revises another will”. MCL 700.12; MSA 27.5012. The code also provides for incorporation by reference, in MCL 700.130; MSA 27.5130, which states:

"A writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification.”

In this case the codicil expressly incorporated by reference the dispositive provisions of the October 20, 1980, will. Under the statute, the codicil is a separate and independent testamentary instrument, the terms of which may be established by reference to the copy of the prior will. Since the original codicil is, by itself, a valid will under the statute, we hold that the probate court erred in applying the presumption of revocation to the original codicil.

We conclude that both documents must be admitted to probate: the codicil as a valid testamentary instrument, and the copy of the prior will for the purpose of proving the dispositive provisions of the codicil.

Reversed and remanded.

Mackenzie, J., concurred.