What happens if a will is lost?
In Virginia the original will of a decedent (person who passed away) must be presented to the court in order for the will to be probated and recognized as the actual will. This can raise the question: what happens if the original is lost or destroyed?
If the original will is lost or destroyed, a petition must be filed for with the Circuit Court asking that court for a judicial finding establishing the lost or destroyed will. The party seeking establishment of the will must prove by ‘clear and convincing evidence’ that a legally valid will existed, and the provisions of the will. Such evidence can include a copy of the executed will, correspondence between the testator and an attorney who helped prepare/execute the will, or similar documents.
Another important consideration in these cases it the legal presumption created by the identity of the person who was last known to have possession of the will. If the testator (creator of the will) was last known to have possession of the will, then the law will presume that the fact the will is now lost means that the testator intended to revoke the will. Obviously this can be a significant obstacle to succeeding in a case seeking to establish a will. However, a presumption is just that – a presumption. If evidence exists that can specifically rebut the presumption that the testator intended to revoke the will, then a suit to establish a will may still succeed.
If the will was last known to be in the possession of a third party, and not accessible to the testator (person who made the will), then the legal presumption is that the will was lost. However, if the will was last known to be in the possession of the testator, then the law presumes that the testator intended to revoke the will.