I’ve talked in the past about probating a Will, proving the Will. In that instance, the original of that document has to go to the court to be proven. That’s the one with the ink on it, signed by the Will-maker and witnessed. What if that Will is missing after the deceased’s death? It does happen. High anxiety, fingers are pointed. Not all is lost. It generally happens in two situations. The first one is the blame storming. Who touched it last?
In most instances, it will be the lawyer who prepared the Will, if it’s a lawyer-made Will. Now, in that instance, that Will, even though it’s lost, the original is lost, can be proven if four things can be established to the court’s satisfaction.
The first one is, the circumstances of why it’s lost? A very detailed explanation is given as to all the circumstances as to why it cannot be found, and yet evidence that it did exist but it can no longer be located. It can happen for any number of reasons. It could be paper-clipped to a back of a letter, posted out, accidentally shredded. Who knows?
The second is that the Will was properly executed. That can be generally done by support by witnesses or there is a photocopy.
The third thing is that the Will being propounded is a true copy of that document. It might be a photocopy. It might be a PDF, who knows? The fourth thing is all the reasonable searches that have been done to look for that Will. Searching the office, searching other law firms, searching the deceased’s house, things like that. If that can be established, then maybe that lost Will can be proven. The second case is the more frequent matter, where the lost Will can be traced to had last been in the possession of the Will-maker? Now, in that instance, there’s a rebuttable presumption. What that means is, it’s presumed to be so unless it can be proven otherwise.
rebuttable presumption that the deceased destroyed it with the intention of
revoking it. Very important that part, destroyed with the intention of
revoking. Now, in that situation, that Will can be proven to be valid if
evidence can come forth of certain situations such as the Will-maker may have
destroyed it accidentally. They were just going through a big pile of
documents, threw them all out, shredded them, burnt them, didn’t know that in
the process of that, they were destroying it, but they did not intend to revoke
it. Another situation is that it can be proven that the Will-maker destroyed it
but could not have had the intention of revoking it.
They may have lost capacity. They might have had no capacity and just shredded all the documents in their home. For the most part, if the Will cannot be found and it was last traced to the Will-maker, it’s presumed that they destroyed it with the intention of revoking it.
I hope that’s been of some interest. Talk to you again next time. Have a good day.