Creating proper estate planning documents is an important step in ensuring that your wishes are carried out upon your death. Equally as important, however, is ensuring that your estate planning documents are kept in a secure, safe place, so that your executor can access the original Will once you have passed away.

However, what happens if you are the executor or beneficiary of an estate, and the original Will cannot be found?  Generally, you need to provide the court with the original Will in order for the Will to be probated (the legal process in which the court reviews the Will to ensure that it is valid, prior to the estate being distributed).  The original Will needs to be provided so the court can ensure that it is valid and that it represents the most recent intention of the will maker.

Luckily, in some cases, a copy of the Will can be probated if the original has been lost.  However, there are additional hurdles that must be overcome for this to occur.  Firstly, there is a presumption in estates law that if the Will was last known to have been in the will maker’s possession and it cannot be located, the will maker intentionally destroyed it (thus revoking it).  This presumption is rebuttable, but the executor will need to prove that it was actually lost, not destroyed intentionally.  If the executor cannot prove this, the estate will pass “intestate” (a mandatory scheme that governs the estate distribution if there is no Will). For more information regarding the distribution of an estate under the intestacy rules, please visit our blog article: “When Should You Make a Will?” https://touchstonelawgroup.com/make-will/.

If the original Will was in a third parties’ possession when it was lost or unintentionally destroyed, there is not the same presumption that the will maker destroyed the Will.  However, the executor will still have to prove that the original Will was held by someone other than the deceased, the copy of the Will is complete and accurate, and the original Will was validly signed and witnessed.

If the Will was prepared by a lawyer, the executor can contact them to obtain a copy of the Will and details about the deceased’s signing appointment with the lawyer, which can help to prove the validity of the Will.

The executor may also have to obtain consent from anyone who may be adversely affected by the copy of the Will being approved.  This would include the deceased’s family who would receive the estate on intestacy if they were not provided for in the Will.

In order to avoid this, we generally recommend to clients that they keep their original estate planning documents in our vault, thus ensuring that it won’t be lost or unintentionally destroyed.  We also recommend to clients that we file a “wills notice” with the Vital Statistics Agency on their behalf.  The wills notice contains the date the Will was signed as well as the location of the Will.  This can help the executor locate the original Will if they do not know where it is.

Author: Jane Otterstrom