Testate probate; Copy of will; MCR 5.132; Estates & Protected Individuals Code; Presumption of revocation; In re Smith Estate; Lost original will; Personal representative (PR)

The court held that the probate court did not err by refusing to admit a copy of the decedent’s purported will and allowing the estate to proceed as intestate. The decedent’s sister was appointed PR in informal proceedings, and appellant later sought testate probate of a copied document that named him PR. On appeal, the court first rejected appellant’s reliance on MCR 5.132 because that rule “does not provide that a purported copy of a will be admitted so long as the other party does not object.” Instead, the rule allows a copy to be used when taking a witness’s deposition. The court next held that the probate court properly applied the common-law presumption of revocation. Under Smith Estate, when a will “cannot be found at the death of the testator” after proper search, and especially when it is not traced out of the testator’s possession, “it is to be presumed that it was destroyed by him” with intent to revoke it. The court held that appellant failed to rebut that presumption because he offered only his own testimony and the copy, his testimony was ambiguous about where the electronic copy was found, and his claim about who drafted the will was directly contradicted by counsel, who stated that the document was “not mine.” The probate court was entitled to assess credibility and the record did not leave the court “with a definite and firm conviction that a mistake” was made. Affirmed.