What Happens When a Will is Lost, Destroyed, Missing or Tainted

lost-damaged-destroyed-last-willUnfortunately, there are many things that can happen to a will before it is admitted to probate, and even, in some cases thereafter. (Probate is the legal process of proving in court that a deceased person’s will is valid.)

Ohio will statutes, Revised Code 2107.26 through 2107.28, address “lost, spoliated, or destroyed” wills, (a “spoliated” document is one that has been intentionally destroyed or mutilated) but wills have also been stolen, found to be illegible, or “tainted” because they have been inappropriately executed, were never signed or some other procedural error was made in preparation.

Getting such wills accepted by the probate court is a challenging process. A will has no legal effect until it is probated and the person in possession of it is required to produce it. This is usually an attorney or the estate’s executor (the person generally named by the deceased in the will to manage and distribute the assets). Statutes impose penalties for concealing or destroying a will or for failing to produce it within a specified time.

Probate of a copy or duplicate of a will is not permitted unless the absence of the original has been satisfactorily explained to the court. A thorough and diligent search for the original will is necessary before a copy can be probated as a “lost” will.

Proving a lost or missing will requires testimony and other evidence to prove the will was not destroyed by the testator (person who wrote the will) with the purpose of revoking or invalidating it. In the past, it was assumed if a will was not available for probate, the testator must have revoked it by destroying it. This is no longer the case and Ohio law provides for specific procedures when wills are not available.

When Can Such a Will Be Probated?

According to ORC 2107.26, the Ohio probate court must admit a lost, spoliated, or destroyed will if the following conditions are met by the proponent (person who puts forth the document for acceptance):

• The proponent can establish by clear and convincing evidence that the will was executed with the formalities required by law at the time of execution in the jurisdiction in which the will was executed. (“Clear and convincing evidence” means the thing to be proved is highly probable or reasonably certain.)

• The contents of the will can be established by the proponent by clear and convincing evidence.

• No person opposing admission of the will establishes by a preponderance of the evidence that the testator had revoked the will. (“Preponderance of the evidence” establishes which evidence has greater weight over another type of evidence. It is an easier to prove standard than “clear and convincing evidence.”)

Beneficiaries of “Lost or Destroyed” Wills?

A beneficiary is an individual or entity to whom the deceased bequeathed real or personal property. When there is no original will to reference, proving it ever existed can be quite difficult. The testimony of persons who witnessed execution of the will or who had read the document before its destruction or disappearance can be crucial in identifying beneficiaries. If the required witnesses have died before the testator, the person offering the will must offer proof of death of the witnesses in addition to any other evidence of proof of execution of the will.

Copies of the will or of communication between the testator and the beneficiaries regarding the instructions of the will can also be submitted to the court and may prove very important.

Action a Person Trying to Admit a “Lost or Destroyed” Will Needs To Take

Although the personal representative (the administrator or executor) of the will usually files the probate petition, by Ohio law it can be filed by any person who has a pecuniary interest in the will. If this is someone trying to admit a lost or destroyed will, he or she must notify all interested parties. The latter are persons who have some interest in the will that will be affected by probate, and who have a right to contest the will. They include:

• The decedent’s surviving spouse.

• Anyone who would have inherited from the decedent under Ohio law if the testator had died “intestate” or without a will.

• Any beneficiaries and devisees named in the will or believed to have been named. (Beneficiaries have no legal status before the death of the testator and before the will is probated they have no right to information about it other than information about their status as a beneficiary.)

• Beneficiaries and devisees named in a prior will.

Anyone who is required to be notified about an attempt to admit a will may oppose admission of the will and must present testimony and evidence to prove the will did not exist, was not properly executed, was destroyed by the testator with the intent to revoke it, or present proof of another issue that would make the will “void.”

What Happens Next?

The probate court will hold a hearing and witnesses can give testimony concerning the will and the testator’s intentions. If the court is satisfied the conditions of RC 2107.26 have been met. It will issue an order setting forth the contents of the will as near as can be determined. The court will then treat this will like any other admitted for probate administration.

If something happens to a will after its initial admission to probate, but before it has been recorded, according to RC 2107.27, notice must be given to the persons listed in the statute, and the probate court may hear testimony. If the court is satisfied that the contents of the will have been substantially proved, the court will record the will as proven and the record will have all of the effects of a record of the original will.

Daunting, But Not Impossible Task

It should be quite evident that if you are attempting to prove the existence of a lost, stolen, spoliated, destroyed, or missing will and the contents of the same document, you have a job ahead of you. If you want to contest a will of this type presented for probate, you have to do it within a certain amount of time and it can also prove challenging.

An experienced probate attorney can help obtain the evidence and testimony you need to establish what happened to a document or to prove it never even existed.

Dependents of the deceased, in particular, have a good chance of claiming some of the estate. Sometimes a lost will isn’t really “lost.” A disgruntled relative may destroy the original in hopes an earlier, more favorable will can take precedence, or that intestacy rules will put that relative in a more advantageous position.

The probate attorneys at our law firm are interested in talking with you and answering your questions about what can become a complex undertaking. Please contact us for a free consultation by calling 1-888-467-5105, chatting with one of our 24-hour live chat operators or sending us a website message.

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