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Can't Find The Will? It May Still Be Enforceable

Jeff Cole
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Partner at Zimmer, Duncan & Cole

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Jeff Cole
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It may come as some surprise to some to know that it is possible to admit a will to probate, or to enforce a will, even if the actual signed will is missing.  Of course, it’s never recommended to rely on this as part of your estate planning, but if you happen to be in the unfortunate position where you know you were named in a will, but the will is missing, then this article might be very useful to you.

In general, a will has to meet certain requirements to be valid.  I won’t get into detail, but for a will to be valid, it needs to be in writing, signed by the testator (person who is making the will), and should be, if possible, signed by two witnesses in the testator’s presence.  Holographic wills are also valid. A holographic will is a will that’s material provisions are handwritten by the testator, and also signed by the testator.

However, it is possible to enforce a will even if the original signed document cannot be found.  There are a couple of burdens to overcome to do so.  First, if the original will has been lost, the proponent of the will, or person seeking to enforce the will, has to prove to the court with “reasonable certainty” that the will was not, in fact, revoked. The reason for this is because the law presumes that if a will can’t be found, that the testator intended to revoke the will by destroying the actual document.

Next, if the proponent has a copy of the will, but it is not the original signed copy, then the will may be enforced if one credible witness can testify that the copy is a true copy of the original. If the proponent doesn’t have a copy of the will, then the proponent must prove the contents of the will with “clear and convincing” evidence. 

In other words, even if you don’t have a copy of the will, it may still be enforceable.  The burden for doing so is high, however.  The proponent must have the judge or jury clearly convinced about what the terms of the will actually were.  This burden of proof is higher than the normal “preponderance of the evidence,” which means more likely than not, but still not as high as “beyond a reasonable doubt,” which means to a near certainty. Obviously, it is even harder to convince a judge or jury if another party is arguing against your case.

Of course, you should never count on this exception to enforce a will. If you have your own will, you should keep it in a safe place, and may even want to keep a copy with your attorney.  However, in the unfortunate event that you believe there is a will that can’t be found, it might not be the end of the world.  Consult with an attorney, and see whether this exception might apply.   

Category: Will Contest

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