Article by: Patrick K. McMurchy
If you’ve searched and can’t find the original of the deceased’s Last Will and Testament, is an authentic copy good enough?
It might be. If the evidence is that the original was stored by someone other than the deceased for safekeeping, but it now can’t be found, an authentic copy will probably suffice.
But with more people preparing wills based on “do it yourself” will kits, more people are also keeping the originals themselves. And even if the will was prepared by a professional, the deceased may have taken the original into their possession.
If the deceased had the original in their possession and it can’t be found after their death, the law presumes the deceased purposely destroyed the original will in order to revoke it. The presumption applies where there is no evidence of actual destruction. The presumption is called the presumption of destruction.
The presumption of destruction is based on the “good sense” idea that a person of ordinary caution would keep important documents, like a will, in a place where they would never be lost or stolen. If the will can’t be found after the person’s death, it is reasonable to conclude the deceased destroyed it in order to revoke it.
The presumption is rebuttable, but if it is not rebutted, it stands and the estate proceeds either on the basis of a previous will or, if there is no previous original will, on the basis that there is no will at all.
To successfully rebut the presumption, the court has to be satisfied that the deceased probably lost the will or probably did not intend to revoke the dispositions made under in the will. That evidence needs to be clear and convincing, i.e. not ambiguous, but it can be oral or documentary evidence.
Examples of evidence the courts have considered include looking at how careful the deceased actually was in storing important documents, i.e., they might not have been a person of ordinary caution.
Also, the court will look carefully at evidence of the deceased’s relationships with beneficiaries named in the will. If these relationships did not change in any meaningful way, that is some evidence the deceased never intended to revoke the dispositions made under in the will, and the copy might be accepted.
This short article is intended to give the reader a general understanding of some of the basic principles respecting whether or not an authentic copy of a will can be used for the purposes of administering the estate. It is not intended as legal advice. In estate litigation outcomes very much depend on the specific facts of each case.