Barbara Lee Elam, 3206 Brook Forest Drive, Tallahassee, FL 32312 (pro se respondent)

Considered and decided by Willis, Presiding Judge, Kalitowski, Judge, and Amundson, Judge.

Appellant wife challenges the district court's denial of her petition to probate her late husband's will, which was based on its finding that the will was not properly executed. She argues that this finding is clearly erroneous. We affirm.

In May 1997, when wife was selling her home, she discovered that it was owned as a tenancy in common, rather than a joint tenancy. A real estate agent testified that he believed this was merely an error and that decedent had intended the property be owned in joint tenancy. Because of the need to settle the ownership of the home, wife petitioned for probate of decedent's will. The copy of the will that wife had destroyed was the only signed copy. In support of her petition, she submitted an unsigned copy of the will, which had been kept by the Burns Law Office, the drafters of the 1989 will. At the hearing, wife testified that she observed decedent sign his will and that two witnesses signed it. She testified that she was very familiar with the will and that the unsigned copy was definitely the same as the signed will. Thomas Zupanc, the attorney who had prepared the will, stated in an affidavit that he believed decedent and his wife came to the Burns Law Office and executed their wills between May 23 and June 29, 1989. This belief was based on his recollection as well as his records of phone messages, billing records, and a letter from Zupanc to the Olsons. Decedent's daughter, Margaret Shipp, appeared at the hearing without representation, presumably to oppose probate, and another of decedent's daughters, respondent Barbara Elam, made submissions that the district court interpreted as opposing wife's petition.

On January 30, 1998, the district court denied wife's petition for probate of decedent's will. This appeal followed.

Wife argues that the district court erred in finding that the will was not properly executed. Under statute, a will must be:

in writing;

signed by the testator or in the testator's name by some other individual in the testator's conscious presence and by the testator's direction; and

signed by at least two individuals, each of whom signed within a reasonable time after witnessing either the signing of the will as described in clause (2) or the testator's acknowledgment of that signature or acknowledgement of the will.

Minn. Stat. § 524.2-502 (1996). That there is no available copy of the original will that comports with the statute is undisputed. Minnesota courts, respecting the common law principle that a lost or destroyed will is presumed revoked, give the lost or destroyed status of a will "some evidentiary weight in determining revocation." Botko, 541 N.W.2d at 618. The proponent of a lost or destroyed will has the burden of establishing that the will was unrevoked at the time of death. In re Estate of Sandstrom v. Wahlstrom, 252 Minn. 46, 57, 89 N.W.2d 19, 26 (1958). This burden is satisfied by a preponderance of the evidence. In re Estate of Langlie, 355 N.W.2d 732, 735 (Minn. App. 1984).

The district court's principal reason for finding that the will was not duly executed was the failure of any witnesses at trial (wife, Pinkert, or Zupanc) to remember the identity of the subscribing witnesses. Therefore the court reasoned, "it would be impossible to offer any evidence that the witnesses signed in the testator's presence." Wife argues determining the identity of the subscribing witnesses is unnecessary in deciding the proper execution of a will.

Wife further contends that the district court ignored evidence that supported execution. Specifically, there was the affidavit of Pinkert, stating her recollection that the will was signed; the affidavit of Zupanc, who stated his belief that the will was executed between May 23 and June 29, 1989, based on telephone and billing records and his own practices; and wife's testimony of her recollection that the will was properly executed.

While there may have been some evidence supporting execution of the will, the fact remains that the statute requires a signed and witnessed will. There was no such will provided, and not only was there no testimony or affidavits of subscribing witnesses, but also there was no evidence concerning who these witnesses were. For these reasons, we conclude that the district court did not err by finding that the will was not duly executed.

Affirmed.