Lost Wills: What To Do When The Original Can’t Be Found

Missing WillsVirginia law requires that an original will be probated (as opposed to a copy). Occasionally, this poses a problem as no one can locate the original will. In those instances, Virginia law provides that a proponent of a non-original will may petition the circuit court to order that a copy of the will be admitted to probate.

As part of that petition, the petitioner will need to name as “necessary parties” to the petition any people who stand to receive a bequest under the will, as well as any people who would stand to inherit a portion of the decedent’s estate if the will was not admitted to probate (in other words, any people named as beneficiaries under an earlier will; or, if there is no earlier will, people who would stand to inherit under the statutory intestacy scheme).

A proponent of a copy of the will faces a critical threshold issue: whether the original will was in the possession of the testator (the person who made the will) at the time the testator died. If it was in the testator’s possession, then there is a legal presumption that the testator destroyed the original will (which, under law, constitutes a revocation of the will). See, e.g., Harris v. Harris, 216 Va. 716, 719 (1976). That presumption must then be rebutted by clear and convincing evidence by the will proponent that the testator did not in fact revoke the will. In a recent blog post, I discussed at some length this scenario, including a recent Virginia Supreme Court decision bearing on the issue.

If the will was not in the testator’s possession at the time of his death, then the proponent of the copy of the will faces a lower evidentiary threshold in seeking to have the will admitted to probate. In that instance, there is a legal presumption that the original will was lost, and any party claiming that the testator revoked the will bears the burden of proof for that contention. Id.

Clearly, this threshold question is important. In disputes centering on lost wills, the parties frequently clash over this threshold question, as the resolution of the question – while not dispositive of the ultimate case – can significantly benefit the party who prevails on the issue, as the other side then bears the burden of proof.

It’s been my experience that in situations involving lost wills, a family member who would stand to receive more of the decedent’s estate (whether via a prior will, or through the intestacy scheme) will frequently seek to oppose a petition to admit a copy of the will to probate, despite the fact that that person may have very little evidentiary support for his opposition. If the person has little evidentiary support for his opposition, he may seek to compel a “nuisance value” settlement from the will proponent in order to drop his opposition, and thereby spare the will proponent from a potentially costly process of conducting discovery and trying the case (a “nuisance value” settlement occurs when a person agrees to pay a relatively small sum of money to be rid of the “nuisance” of litigating the issue, with the theory being that it’s more economical at the end of the day to pay a small monetary settlement than incur higher legal fees litigating the issue).

In sum, a party petitioning the court to have a non-original will admitted to probate needs to be prepared for potential opposition, even if the party has a strong argument that the will should be admitted. And parties who may stand to receive a larger portion of the decedent’s estate if the non-original will is not admitted to probate would be well served discussing with an estate litigator what their options are to attempt to negotiate a more favorable resolution.

Will Sleeth

About: Will Sleeth

Will Sleeth serves as the editor of the Estate Conflicts blog, and is the leader of the firm’s Estate and Trust Litigation practice area team, a nationwide team composed of over a dozen attorneys focusing on disputes involving wills, trusts, guardianships, conservatorships, powers of attorney, and elder law matters. Primarily based out of the firm’s Williamsburg and Richmond offices, Will represents clients all throughout Virginia and the nation. View all posts by Will Sleeth
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