Lost Will Can Cause Evidentiary Problems

In Virginia, when the executor is ready to open an estate, he or she makes an appointment with the probate division of the circuit court, and, among other things, brings the will. The probate division will require an original signed copy. But what if the will is lost? What do you do then?

The probate division will not accept a photocopy of the will. To admit a photocopy of the will, the executor will have to file an action in the circuit court requesting an order that the photocopy be admitted to probate.

But, proving that the court should issue the order is not always an easy task. The reason is that a person who writes a will has the right to revoke it. One way he or she can revoke it is by destroying the will. So, when you do not have the original will, you have to satisfy the court that the testator did not revoke it by destroying it.

Virginia law creates two presumptions. The first is that when the will was in the possession of the testator, if the will cannot be found, the will is presumed to have been revoked. The second is that when the will was not in the testator's possession and cannot be found, the will is presumed lost and not revoked. Either presumption can be overcome, but only with clear and convincing evidence.

The best practice is not to rely on presumptions. For example, assume the testator gave the original copy of the will to his or her lawyer for safe-keeping. After the testator's death, the lawyer cannot find the will. The executor should present testimony from the lawyer, not only that he or she cannot find the will, but also on the surrounding circumstances. Why was it lost? Did the law firm move? Did the lawyer have any communication with the testator after signing the will?

The executor should try to present other evidence as well. What kind of person was the testator? Did he or she talk with anyone about the will? Was there any family discord that would show that the testator had reason to revoke the will? Is there any reason to suspect undue influence?

The executor should be prepare to make this motion before going to the probate division. Without an order, the probate division will not admit the photocopy of will to probate. A qualified estate administration lawyer can help.