Probate of Lost or Destroyed Wills

Probate is often required when a person dies and there is a will in place. But what happens when you thought the person had a valid will but it ends up being lost or destroyed?

A lost will is defined as an original will that cannot be found after the testator’s death. If an original will was in the testator’s possession and cannot be found after their death, then it is often presumed that the testator revoked the will.

This is also the case for a destroyed will. If a family member finds a will but it has been torn, burned, or destroyed in some other way, it is presumed that the testator no longer wanted it to be valid.

When an original will cannot be found after a person’s death, the estate does not automatically pass under that will’s terms. Instead, the court must determine whether a lost or destroyed will can still be admitted to probate. This is a process that is often complex and heavily scrutinized.

In these cases, the law presumes the will was intentionally revoked. Overcoming this presumption typically requires clear and convincing evidence that the will existed, was properly executed, and was not revoked. This requires reliable evidence showing the testator’s intent. Here is a look at the evidence needed.

Proof the Will Was Properly Executed

The proponent must show the missing will was valid when it was created. This usually requires evidence that:

• The testator had legal capacity at the time of execution.
• The will was signed by the testator.
• The will was properly witnessed according to state law.

Evidence often comes from:

• Testimony of witnesses.
• The drafting attorney’s records or affidavit.
• Execution checklists or notary logs.

Proof the Will Existed at Death or Was Not Revoked

If the original will cannot be found and was last in the testator’s possession, courts typically presume intentional revocation. To rebut this presumption, the proponent may present evidence such as:

• Statements by the testator shortly before death confirming the will was still in effect.
• Proof the will was kept in a secure location (such as a law office or safe deposit box).
• Evidence of accidental destruction (such as fire, flood, or theft).
• Testimony showing others had access and opportunity to remove or destroy the will.

Proof of the Will’s Contents

Courts must know exactly what the will said before enforcing it. This can be established through:

• A complete copy or scanned version of the will.
• Drafts that substantially match the final version.
• Testimony from the drafting attorney or witnesses familiar with the terms.
• Estate planning notes or correspondence confirming provisions.

Seek Legal Help

Probate can be especially tricky when there is presumed to be a will but it ends up getting lost or destroyed. A lot of evidence is needed to prove your case.

A Fort Lauderdale probate litigation lawyer Edward J. Jennings, P.A. can assess your situation and help you understand what evidence you need to move forward. Schedule a consultation to learn more. Call 954-764-4330 or fill out the online form.

Source:

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