Handling Lost Wills

Wills tell people where property should go when someone passes away. Unfortunately, wills become lost. People can misplace them. Fires can destroy them. In some instances, other people may take them because they do not like what they contain. Fortunately, Ohio law permits courts to admit lost wills or destroyed wills.

Parties must convince probate court to admit lost, damaged, or purposefully misplaced and destroyed documents (sometimes called ‘spoliated’). In doing so, parties present evidence at a hearing. Courts conduct these hearings in courtrooms before judges and magistrates.

Putting on evidence requires an evidentiary hearing. An evidentiary hearing is when the court hears sworn testimony and examines properly authenticated documents. At these hearings, the Ohio Rules of Evidence apply. The parties present testimony and exhibits in a specific way. Otherwise, the court cannot take the information into consideration in reaching a decision on lost wills.

Damaged or Spoliated
What to do when your will becomes lost?

The Ohio Revised Code outlines the test required to admit lost wills. Specifically, R.C. 2107.26 lists the factors that courts must consider when admitting a lost will to probate court. A lost will must be valid. A lost will must include information needed to distribute property. The deceased must not have revoked the will. A party looking to admit a lost will to the court must file a motion or application to have the will admitted.

Before a hearing occurs, the party seeking to admit the will must send notice to all interested parties. This means that they must notify the spouse. Likewise, they must notify all individuals that could receive a portion of the deceased’s estate based on Ohio’s statute of descent and distribution. If previous wills exist, the party must notify all individuals named in those wills as well. These requirements ensure that everyone who has a stake in the estate gets an opportunity to contest the matter if they disagree with the admission of a lost will. Once all the parties receive notice of the hearing, the court will schedule the hearing on admitting the lost will.

Factor 1 – Proper Execution

The lost or destroyed wills must contain proper signatures. In Ohio, this means that two disinterested witnesses must see the decedent sign the will. Additionally, the person signing the will must have testamentary capacity at the time she signs the will. However, courts may admit wills so long as they are valid according to the law in the state it is signed. Therefore, courts may admit valid wills from other states. This means if another state law requires only a notary, courts will consider it sufficient.

Demonstrating proper execution requires evidence. Oftentimes, parties locate the witnesses who witnessed the signature of the deceased. Parties may admit letters or other forms of correspondence. For example, emails confirming that a will was signed with two witnesses present help persuade courts. Parties should try to exhaust as many avenues a possible; particularly if witnesses are deceased or unable to be located.

Parties cannot simply present information and assume the court will grant admission of the will. Rather, the courts must have clear and convincing evidence that the will was properly executed. Clear and convincing means that it must be highly more probable than not. If the parties do not establish this through clear and convincing evidence, then the court will deny the application to admit the lost or destroyed will.

Factor 2 – The Contents of the Will

Even if a party demonstrates that a will is properly executed, the court must also know the contents of a will. The contents of the will include the information regarding how the property should be distributed. It should include information concerning proposed guardians for minors and listing any and all beneficiaries in the will.

Without the contents, the court will not know how to distribute the property. The admitted wills should contain this information. The party admitting the will must also demonstrate this by clear and convincing evidence.

Generally, the best way to demonstrate the contents of the will is by providing a signed copy of the executed document. Other forms of evidence can include courtesy copies, e-mail attachments, and affirmations of the documents signed in front of the witnesses. Working with a lawyer can assist when it comes to constructing as persuasive of an argument as possible when it comes to proving the contents of a will.

Factor 3 – Proof of Revoked Will

While the moving party must demonstrate the first two factors, any other party has the opportunity to demonstrate that the deceased revoked the previous will. Probate courts do not accept revoked wills. Because of this, proof of a revoked will prevents the court from admitting the will.

The standard for proving a revoked will is lower than the standard for demonstrating the lost will was valid and what it contained. This standard is considered the preponderance of the evidence.  So long as the evidence appears greater that it was revoked, the courts will determine that the standard is met.

Any party to the probate case can challenge the lost will. This is part of the reason why all individuals with an interest under the default inheritance law in Ohio, mentioned in the will, or mentioned in any other will must receive notice of the hearing. If the party does not receive proper notice, any hearing could potentially be voided and any decision can be subject to undoing.

A party can present various types of evidence to demonstrate a revoked will. For example, an express writer revocation can demonstrate this. Likewise, a later-in-time will helps demonstrate revocations of previous wills. However, parties can revoke wills even without having new ones in place.

Like demonstrating the existence of a lost will, proving that the deceased revoked a will requires the ability to properly introduce evidence. Additionally, it is recommended that parties strongly consider hiring lawyers if it appears other relatives attempt to demonstrate a revoked will. In both of these situations, courts need all the information possible in order to make a proper decision. Because of this, much importance rests on evidence that parties must properly admit.

Dealing with Potentially Lost Wills

If a party is able to demonstrate a complete, valid, and unrevoked will exists, the probate court will admit the will to be administered. Absent these circumstances, courts cannot admit lost wills for administration. The admission of a lost will is fact-intensive; which means admission will hang on whether the facts exist for it. Because of this, a party should do everything they can to assemble all information concerning potentially lost, spoliated, or temporarily misplaced.