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Q: Lost will - probate of same ( Answered 5 out of 5 stars,   1 Comment )
Subject: Lost will - probate of same
Category: Family and Home > Families
Asked by: sunkat-ga
List Price: $30.00
Posted: 07 Apr 2004 18:21 PDT
Expires: 07 May 2004 18:21 PDT
Question ID: 326922
What is the general rule in the various states respecting the
recognition and probate of wills where the original executed copy
can't be found.
Subject: Re: Lost will - probate of same
Answered By: juggler-ga on 08 Apr 2004 02:25 PDT
Rated:5 out of 5 stars

First of all, I should note that Google Answers provides general
information and is not a substitute for professional legal advice. The
information presented below may or may not apply to your particular
circumstances.  If you need professional legal advice, you should
contact a qualified attorney in your area.


The laws on this are very similar in most states.  If a will is lost,
there's typically a rebuttable presumption that it was destroyed. What
this means is that the court will presume that the testator (the
creator of the will) destroyed the will. However, those who wish to
probate the lost will may introduce evidence that the will was not
destroyed. The sort of evidence that is allowed may vary slightly
among different states, but basically the probate court must be
satisfied that the will wasn't destroyed. If the evidence suggests
that the will wasn't destroyed, then it will be admitted to probate.

From the State of Colorado, Denver Probate Court:

"...the well-established common law rule: When a will, probate of
which is sought, was last seen in the possession and control of the
decedent and after a thorough search, cannot be found after her death,
the law presumes that the maker of the will destroyed it with the
intent to revoke."
Denver Probate Court

Some states such as California have codified the general rule:

"6124.  If the testator's will was last in the testator's possession,
the testator was competent until death, and neither the will nor a
duplicate original of the will can be found after the testator's
death, it is presumed that the testator destroyed the will with intent
to revoke it.  This presumption is a presumption affecting the burden
of producing evidence."
California Probate Code 6124

In California, such a presumption is rebutted by introducing evidence
of the nonexistence of the presumed fact (e.g., evidence that the will
wasn't destroyed).

"604.  The effect of a presumption affecting the burden of producing
evidence is to require the trier of fact to assume the existence of
the presumed fact unless and until evidence is introduced which would
support a finding of its nonexistence, in which case the trier of fact
shall determine the existence or nonexistence of the presumed fact
from the evidence and without regard to the presumption..."
source: California Evidence Code 604

Here is the Denver court's explanation of the rationale of the presumption:

"...the presumption arises from the common sense notion that a person
is aware that her will is a document of important that instructs her
survivors as to the specific disposition of her estate at death.
Accordingly, this document would naturally be kept in a safe place,
readily accessible to those successors who are expected to carry out
its directions. When the document cannot be found and the decedent was
the last person known to have had possession of it, it is logical to
conclude that the decedent destroyed the document because it no longer
represented her instructions, i.e., she changed her mind.
Denver Probate Court

As mentioned, though, that the presumption may be rebutted with
sufficient evidence that the will wasn't destroyed.

"This presumption, however, is not conclusive and may be rebutted with
sufficient evidence. Annotation, Proof Of Nonrevocation In Proceeding
To Establish A Lost Will, 3 ALR2d 949, 952. The strength of this
presumption depends upon the character of the decedent?s custody of
the will and whether other individuals had access to it. Wills, C.J.S.
385 at 285 (Cumm Supp. 1999)."
Denver Probate Court

The Denver court goes on to explain that the strongest evidence is
proof that the will was seen AFTER the testator died. Absent such
evidence, the court will rely on CIRCUMSTANTIAL evidence.  Several
examples are cited.

"The most powerful evidence that can be offered to the Court to rebut
the presumption is proof that the will was seen after the testatrix?
death. See generally, 3 ALR 2d supra 979-82."
  Where there is no proof that the will was seen after the testatrix?
death, the presumption of revocation must be rebutted by
circumstantial evidence.
  Use of Circumstantial Evidence
Courts have admitted the following as circumstantial evidence of
nonrevocation: declarations or acts of the decedent demonstrating the
existence of a will, see, e.g. Eder, 29 P.2d 631 (Colo. 1934);
evidence of the decedent?s relationship with beneficiaries under the
will; the decedent?s state of mind prior to death (i.e. whether he had
sufficient mental capacity to destroy a will); evidence that one with
an adverse interest had the opportunity to destroy the will. Hartman,
563 P.2d at 573 (citing 3 ALR2d 949, 986).
  Such evidence must be ?positive clear, and satisfactory (Dalbey?s
Estate (1937) 326 PA 285, 192 A. 129), and it must be sufficient to
overcome both the presumption of revocation by the testator and the
presumption of innocence on the part of a third person charged with
destroying the will (Mitchell v. Low (1906) 213 Pa 526, 63 A. 246).? 3
ALR2d supra at 963. As a result, the existence of one of these factors
standing alone is usually insufficient to overcome the presumption
that the decedent revoked her will. "
Denver Probate Court

Here is a very similar explanation the general rule from another
state, South Dakota:

"...the presumption that a lost will has been revoked still remains
and, as such, is a matter of substantive law governing revocation of
wills. SDCL 30-6-27 was a procedural law governing the probate of lost
or destroyed wills. See In re Estate of Hartman, 563 P2d 569, 572
(Mont 1977); see also Modde, 323 NW2d at 898 (holding that, "The
failure to find a will after a careful and exhaustive search raises a
presumption that the testator destroyed it with the intent to revoke
it.") (citation omitted). The fact that the presumption still exists
can also be seen in the express language of SDCL 29A-3-402(d), which
states: "[T]he will may be admitted to probate if the court is
reasonably satisfied that the will was not revoked by the testator."
Thus, proof must be provided to the trial court to "reasonably
satisfy" it that the will was not revoked.
... As mentioned, under SDCL 30-6-27 there were two methods by which a
proponent of a lost will could rebut the presumption that the will had
been revoked. Those methods were either by proving the existence of
the will at the time of the death of the testator, or by showing that
the will was fraudulently destroyed during the life of the testator.
Under the UPC, there are no such express limitations as to what needs
to be proved to rebut the presumption. See Hartman, 563 P2d at 574.
The only requirement is that, given all the evidence, the trial court
must be "reasonably satisfied" that the will was not revoked"
source: South Dakota bar: Estate of Long, 1998 SD 15

search strategy:
"probate * lost will"
"will was not revoked"
"estate of hartman"
"find california code", probate

I hope this helps.

Clarification of Answer by juggler-ga on 08 Apr 2004 02:33 PDT
In my second paragraph, I should have stated, "If SATISFACTORY
evidence suggests that the will wasn't destroyed...."
sunkat-ga rated this answer:5 out of 5 stars and gave an additional tip of: $15.00
Excellent memo.

Subject: Re: Lost will - probate of same
From: juggler-ga on 10 Apr 2004 06:26 PDT
Thank you for the generous tip.

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