Klenk Law

What Happens When a Will Goes Missing? Planning for When a Plan Disappears

Posted on Wed Jan 28, 2015, on Estate Planning

If you can’t find your loved one’s Will – or can only find a copy of the Will – what happens? Let’s look at an example of a judge addressing a typical case. In Falcone Will, the Orphans’ Court Division of Chester County analyzes what happens when beneficiaries attempt to probate a copy of a lost Will in Pennsylvania.

The key facts are as follows:

  • Deceased’s children and children’s cousins have history of animosity
  • Deceased orally tells both children and cousins of specific gifts
  • Deceased discusses drafting Will in 2002 with close friend
  • Copy of alleged 2002 found at deceased house at death
  • 2002 copy submitted to Register of Wills for probate
  • Children challenge validity of 2002 Will copy

Courts prefer original documents. When attempting to probate a copy of a ‘lost will’, a presumption exists that the original was intentionally destroyed or revoked. In order to overcome this presumption, it must be shown that:

  1. an original will was actually executed,
  2. contents of the original are substantially the same as the copy, and
  3. testator had not revoked or destroyed the original prior to death.

In Pennsylvania, the proponents of the Will copy must produce two competent witnesses, testifying to both the execution and contents of the original.

In Falcone Will, cousins of the testator’s children attempted to probate the Will copy. This supposedly left them significantly more than they would otherwise receive. The cousins ultimately failed, and the 2002 Will copy was denied probate. Here is why.

The decedents oral bequests, and statements of intention to draft a Will were insufficient to establish validity of the copy. As noted above, in order to submit a will copy to probate, two witnesses must testify to the execution and content of the original. In Falcone, the cousins could not produce one witness. Therefore, the presumption remained that the testator destroyed or revoked the will.

One simple solution to avoid the outcome in Falcone – trust safekeeping of your original Will with an Experienced Chester County Estate Planning Attorney.

If you need assistance with probate or with developing your Chester County Estate Plan, please call one of our Probate Lawyers or Estate Planning Attorneys for a free consultation. We have Estate Planning Attorneys in New Jersey, Pennsylvania, New York, Minnesota and Florida.

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