What to do when the original will can't be found | Virginia Family Estate Dispute Lawyer

After a loved one dies, there are many things that must be done.  One important task is to find the decedent's original will.  That can involve searching through the decedent's important papers, locating any safe deposit boxes they might have, and calling an estate planning lawyer's office to determine if they might happen to have it.  

But what happens when you've looked everywhere, and the original will still can't be found?  You know the decedent had a will.  Maybe they told you about it explicitly.  Or maybe they just made comments to you suggesting that they had made arrangements to leave their property to certain people after they were gone.  Can a copy of a lost or misplaced will be admitted to probate in Virginia?  Under the right circumstances, the answer is "yes." Indeed, in rare situations, it may even be possible to probate a lost or misplaced will even if no copy can be found either.

Overcoming a Presumption for a Will in Virginia

It is certainly possible to probate a lost will in Virginia, and it happens somewhat regularly.  But that doesn't mean it's an easy task.  Even if you have a copy of the missing will, you can't just take it to the clerk's office and have it admitted to probate, like you could with a signed original.  Instead, you have to file a lawsuit in the circuit court to "establish" the will. 

In most cases, the proponent of a lost will face an elevated burden of proof in such a lawsuit.  This is because, when an original will in the testator's custody can't be found after they die, Virginia law presumes that the testator destroyed the will with the intent to revoke it.  To overcome that presumption, the proponent of the lost will must prove otherwise by clear and convincing evidence.

Does that mean the proponent has to prove what became of the lost will?  No, it doesn't.  Although evidence establishing exactly what happened to the will would be ideal, it often isn't available.  If it were, the will probably wouldn't be lost.  So what other evidence can be used to overcoming the presumption that the will was destroyed and revoked? 

The short answer is that it depends on the particular circumstances of the case. 

  • Maybe the testator regularly told others that they wanted their estate handled in accordance with the lost will. 
  • Maybe they told others that they didn't want their estate to be handled in a different manner or that they didn't want to leave property to a certain person. 
  • Maybe they gave a copy of the will to a financial advisor shortly before they died. 
  • Maybe a copy of the will was found where the testator kept their important papers. 
  • Maybe the testator never told anyone that they intended to revoke the will. 

Anyone of those circumstances would help to rebut the presumption that the will was destroyed with the intent to revoke it.   

What if You Can't Find a Copy Either?

If you have a photocopy of a will, and you can overcome the presumption of revocation, you're well on your way to establishing a lost will.  But what happens if you know the decedent had a will, you've looked everywhere, and you can't find a copy of the will either?

Believe it or not, you might not be out of luck.

Establishing a lost will without a copy will undoubtedly be an uphill battle.  As early as 1913, the Supreme Court of Virginia upheld a decision to probate a lost will without a copy when the contents of the will could be established and were not denied.  In another case from 1943, the lawyer who made a will testified that he didn't keep a copy but was able to reconstruct what it said.  The Supreme Court of Virginia thought that was enough for the lost will to be admitted to probate.

Benjamin P. Kyber
Richmond Appellate Law Attorney Serving Virginia, Henrico County.
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