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Presumptions Regarding a Lost or Missing Will

A last will and testament is an important legal document. It is not something that should be drafted or signed without careful consideration. And once a will is signed, it’s essential to keep the original in a safe place where it may be located after the person’s death.

As a matter of law, an executor must file a signed, complete, and original version of a purported last will and testament. In many cases, an estate planning attorney will have a client sign duplicate originals. While a photocopy of a will has been admitted to probate in some cases, it is never advisable or ideal. California law presumes that a missing will is presumed revoked, assuming it was last in possession of the person who made it. This is only a presumption that can be overcome by additional evidence, such as a photocopy, but again this is neither advisable nor ideal, especially in cases where a will is contested by one or more parties.

In re Estate of Dixon

A recent Texas case illustrates the problems with missing original wills. In this case, the deceased was Floyd Dixon. He signed a will in 2000 naming one of his eight children, Rosalyne, as executor. Dixon placed the signed original in a safe deposit box that only he and his daughter could access. He also gave his daughter a photocopy of the original will.

After Dixon’s death, his daughter searched the safe deposit box but could not find the original will. She then tried to probate the photocopy her father had given her. Neither the trial court nor the Texas Court of Appeals would allow this.

Like California, Texas law presumes that a missing original will has been revoked by its maker. The Texas courts said Dixon’s daughter failed to present sufficient evidence to rebut this presumption. To the contrary, the Court of Appeals noted that by all accounts, Dixon voluntarily removed the will from his safe deposit box and destroyed it. Testimony before the trial court suggested Floyd simply wanted to amend his estate plan to provide a greater inheritance for his third wife. And in any case, Dixon’s daughter presented no evidence to the contrary.

In many respects, Floyd Dixon executed a model estate plan. He kept his original will in a safe place that his intended executor could access. But he apparently neglected to tell his family that he revoked his will just before his death. This omission led to costly litigation.

A person is always free to amend or revoke a will during his or her lifetime. It’s also important to maintain a clear chain of custody with respect to any original documents: When you make a new will, it should revoke the prior will, but I can be beneficial to keep the old will. That way there is no confusion about which document specifies your wishes. As always, an experienced California estate planning attorney can advise you of the best course of action. Contact the Law Office of Scott C. Soady today if you have any questions.

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