Legal Definitions - lost will

A "lost will" refers to a will that was validly executed by a person but cannot be physically found after their death. Despite its absence, a court may still admit a lost will to probate if there is sufficient evidence that it existed, was not intentionally revoked, and its contents can be accurately proven.

A lost will refers to a validly executed last will and testament that cannot be physically located after the death of the person who created it (known as the testator).

In many legal systems, if an original will cannot be found, there is a legal presumption that the testator intentionally destroyed it with the purpose of revoking it. However, this presumption can be challenged and overcome if sufficient evidence is presented to prove:

• That the will was properly made and legally valid.
• What its contents were.
• That it was lost accidentally, through circumstances beyond the testator's control, or due to the actions of a third party, rather than being intentionally revoked by the testator.

If successfully proven, a court may admit a copy or a reconstruction of the lost will to probate, allowing the testator's wishes to be carried out.

Examples:

• Accidental Destruction: Mrs. Albright had her will prepared by her attorney and kept the original document in a fireproof safe at her home. After her passing, a severe house fire completely destroyed her residence, including the safe and its contents. Her children, who knew about the will, were able to provide a copy that the attorney had retained. They presented this copy, along with testimony about the fire, to the court.

  This illustrates a lost will because the original document was destroyed by an unforeseen event (the fire), not by Mrs. Albright's intent to revoke it. The court would likely accept the attorney's copy as proof of the lost will's contents.

• Misplacement by a Third Party: Mr. Davies executed his will and entrusted the original document to his long-time administrative assistant for safekeeping in the company's secure document storage. After Mr. Davies' death, the assistant, who had since retired, could not recall the exact location of the will, and despite extensive searching, the original document could not be found. However, Mr. Davies' attorney had a signed duplicate original and detailed notes from the will's execution.

  Here, the original will is lost due to misplacement by a third party, not by Mr. Davies himself. The attorney's duplicate original and records serve as strong evidence to establish the will's validity and contents, allowing the court to potentially admit it to probate despite the absence of the primary original.

• Theft or Unauthorized Removal: Ms. Chen kept her original will in a locked drawer in her home office. After her death, her family discovered that the drawer had been forced open, and while other valuables were untouched, the will was missing. There was suspicion that a disgruntled relative, who was disinherited in the will, might have taken it. Ms. Chen's attorney had a digital scan of the signed will and witnesses who could attest to its proper execution.

  This scenario represents a lost will where the original document was likely stolen or removed without Ms. Chen's consent or intent to revoke. The digital scan and witness testimonies would be crucial in proving the will's existence and contents, allowing the court to potentially validate it.