The Dilemma of the “Lost Will”

Posted by Alan Fanger

I often see clients who believe that a family member has taken steps to destroy a parent’s will.    This claim is usually made where that family member has also taken steps to transfer certain real estate or personal property to themselves and their parent jointly with rights of survivorship,  so that when the parent dies,  the family member acquires the property by right of survivorship.

Most people believe that if a will cannot be located,  that is basically the end of the ballgame, and that they have no rights to argue in court to the contrary.    Fortunately, the law steps in to provide some relief, though not a tremendous amount of it.    Where someone claims a will has been lost or destroyed, there is a presumption that the testator (the person making out the will) destroyed it,  and the person claiming otherwise has to rebut that presumption with evidence.    The following evidence can be, and has been used, to rebut that presumption:

1.  The length of time that elapsed between the making of the will and the parent’s death.  Say, for example,  that John Smith died in 2013 at age 91,  but that you know that he went to see Attorney Jones in 1980 to prepare will when John was 58, that Attorney Jones has since died and that his office files cannot be located.    The court could find that the passage of time and lack of access to records could lead to the conclusion that a will was in fact made out back in 1980 and never destroyed or revoked by the parent.

2.  The age and medical condition of the person making the will,  as of his or death.   A person who dies suddenly or at a young age or in middle age,  or dies suddenly and not after a lengthy illness,  and who is known to have made a will,  is less likely to have lost or misplaced it.

3.  Access of the family member to the testator’s residence, files or safe deposit box.   If the family member knows where the testator may have kept his or her will because that family member had access to places where the will may have been kept,  then that is evidence that can be used to demonstrate that the family member found and destroyed the will.


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