The Effect of Lost or Destroyed Wills

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A lost or destroyed original will can unravel the best laid plans of a person trying to specifically avoid ambiguity when it comes to his/her testamentary intent. Washington State adopts the common-law presumption of animo revocandi (latin for “with intent to revoke”) that a lost or destroyed will was purposefully revoked. Probating a will when the original executed will is unavailable involves a complicated process made even more complicated by the fact that the testator is no longer present to clear up any confusion. Before probating a copy of a lost or destroyed will, there should be consideration of a number of factors:

Was the original will validly executed in the first place?

Before even considering the probate of a copy of a lost or destroyed original will, a court must determine whether the testator executed a valid will in the first place. In Washington State, a valid will must meet certain criteria to be considered validly executed:

  • The person must be at least 18 years old and be considered “of sound mind”;
  • The will must be in written form;
  • The will must be signed by the testator;
  • The will must be attested by two witnesses in the testator’s presence, who either signed their names to the will or signed a valid affidavit under penalty of perjury stating such facts as they would be required to testify to in court to prove the existence of the will.

If the original will did not meet these requirements, then attempting to probate a copy of a lost or destroyed will would be a meaningless effort. Any attempt to probate a copy of a lost or destroyed will requires “clear, cogent, and convincing” proof of the original will’s proper execution. If there is any doubt as to whether these requirements have been met by this high burden of proof, you should seek legal assistance from an estate litigation attorney before proceeding.

Was the original will intentionally revoked by the testator?

Consider whether there may have been a reason why the original will could not be found or was destroyed.

Did the testator go through a life event that changed his or her testamentary intent, such as marriage, a new child, a change in economic circumstances, or a falling out with a family member?

Was there a significant event that could explain why the will cannot be found, such as a natural disaster destroying the testator’s home, the will was misplaced in a move, or the will being in a safe deposit box at a bank that has been forgotten about?

Because the presumption under Washington State law is that the testator purposefully revoked or destroyed a missing original will, anyone who seeks to probate a copy of the lost or destroyed will must provide sufficient evidence to counter this presumption.

Is there sufficient proof of the contents of the original will?

In addition to proving the proper execution of the original will and overcoming the presumption that the testator did not intentionally revoke or destroy the will, a person seeking to admit a copy of a lost or destroyed will into probate must also prove the contents of the will (what did the will say?) by the same elevated burden of proof requiring “clear, cogent, and convincing” evidence.

The most common reason why people become aware of a lost or destroyed will of a recently deceased loved one is because they have discovered a photocopy of the original will. However, a photocopy of the original will alone is insufficient to prove the contents of the original will under Washington State law. What if the photocopy was made of an early draft of the will, but the will was modified again prior to its final execution? As a result, even a photocopy will still require additional evidence, such as the testimony of one of the will’s witnesses or drafting attorney to confirm that the photocopy accurately reflected the original executed will’s final terms.

Meeting this burden of proof can become even more complicated if a photocopy is not available. In these cases, extensive additional circumstantial evidence of the original will’s contents will be necessary to meet the elevated burden of proof. The ability to admit such circumstantial evidence is also subject to strict restrictions under the rules of evidence and statutory prohibitions commonly referred to as “the Deadman’s Statute.”

If the steps of attempting the probate of a lost or destroyed will are incorrectly done to begin with, the ability to fix the situation could be a costly endeavor (if it can be fixed it all). It is important to seek legal assistance from an estate litigation attorney to make sure all of the prerequisite steps are appropriately met.

Best Practices for Avoiding Future Issues with a Missing Original Will

  • Let your nominated personal representative know where the original will is kept: The reason why you nominated this person is because you trusted them to take care of your last wishes and affairs. As a result, your personal representative should always be aware of where you are keeping your original will and be updated every time the location of the original will has changed.
  • Consider leaving your will in your local court’s will repository: Washington state law allows individuals to deliver an original will for filing under seal to any court having jurisdiction over the will even if the testator has not yet died. Once the testator dies, the will becomes public record and anyone with a certified copy of the testator’s death certificate can ask the court to unseal the original will. King County, for example, offers a will repository service for a $20.00 fee. We do not recommend repository but if you are going utilize a will repository service, be consistent and file updated wills/codicils as they are executed and remove any prior revoked wills/codicils as they become ineffective. Avoid creating an ambiguous situation where your loved ones are unsure whether an earlier-dated will in the repository versus a later-dated will never filed in the repository is your intended last will and testament. Additionally, most repositories only keep wills and not trusts or powers of attorney.
  • Consider keeping the original will with the drafting attorney: The drafting attorney is likely one of the first individuals to be called as a witness in the event of a lost or destroyed will. Most estate planning attorneys offer to store the original wills of their clients and it can be a safer route if the alternative is keeping the original will in a desk drawer at home. Keeping your estate planning documents with your attorney can also be a good way to remind yourself to keep the documents up-to-date with any change of circumstances in your life which may alter your testamentary wishes.
  • Avoid keeping your will in a safe deposit box: Financial Institutions are strict as to who may access safe deposit boxes. Once an account owner passes away, only the personal representative or administrator of the account owner’s estate may access the safe deposit box and a court order is usually required before the financial institution is willing to offer access. However, in order for a court to appoint a personal representative of the estate and issue an order to open the safe deposit box, the person’s will (which is currently in the safe deposit box) must be admitted to probate. See the problem? What was thought to be a secure place to store the original will in a sense became “too secure” and will now involve multiple more expensive trips to court to get the required court orders to access the safe deposit box.

At Helsell Fetterman LLP, our Estate Planning Department offers to store the original executed estate planning documents for our clients at no cost. If you are considering updating your estate planning, contact our Estate Planning Team to discuss this and other preventative measures that could avoid probate problems like this in the future.

Probating a copy of a lost or destroyed will is a complicated process that involves meeting a higher burden of proof than what you would deal with in your typical civil case. It is extremely important to seek legal assistance in dealing with a lost or destroyed will. The amount and type of evidence needed to establish a lost or destroyed will requires experience with multi-faceted motions practice and a deep understanding of the rules of evidence. Things can get even more complex if someone is contesting your efforts to establish the lost or destroyed will. If you are dealing with the possibility of probating a lost or destroyed will, contact our experienced Trust and Estate Litigation Team to see how we can help.

About the Authors

Kevin Khong

Kevin is a Partner with the firm who practices in the trust and estate litigation practice group and who also specializes in civil appeals for a number of different legal practice areas.

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