The final wishes of an individual are usually set forth in a document referred to as a last Will and Testament. In this document, the desired distribution of the deceased’s assets is explained. Due to the importance of a Will, not only for the deceased, but also for the deceased’s beneficiaries, it is often kept in a very secure location, such as a safety deposit box, a bank vault, or entrusted to an attorney.
But what happens if the original of the Will cannot be located after the individual has passed away? Can a copy of the Will be legally used to carry out the wishes of the deceased?
When the original of the Will has been lost
A particular scenario that can occur is when an individual provides a copy of his or her Will (not the original) to another person for safekeeping. After the individual passes away after a number of years, no one is able to find the original Will document. In this situation, if the copy of the Will that is available is not deemed valid by the court, it may not be used for purposes of probate.
The copy of a Will may or may not be valid based on the particular facts involved in a case
The following proof is required in order to establish the validity of the copy of a Will for purposes of probate:
- The testator is deceased
- The testator created and executed the Will and the document fulfills the requirements of a valid Will
- The contents and substance of the Will
- A diligent search has been conducted to locate the original Will document
- The testator did not revoke or destroy the original of the Will
Under the Tennessee law that governs lost wills, the overriding presumption is that the individual who created the Will revoked it or destroyed it if the original Will document cannot be found. It is possible to overcome this presumption in a Tennessee probate case. However, in order to overcome it, it is necessary to provide persuasive evidence that counters the presumption.
In an effort to prove that the testator did not revoke or destroy the Will, you may provide hearsay evidence containing alleged statements that witnesses heard from the testator any time prior to or after the Will was created and executed. The evidence provided must be directly relevant to the issue of whether the deceased testator revoked or discarded the Will.
A Will may be considered invalid for various reasons. Our Chattanooga probate litigation attorneys at Wagner & Wagner understand the intricacies of the probate process and issues surrounding lost original Will documents. If you are an executor, heir, or beneficiary of a loved one’s estate in Chattanooga, Cleveland, TN, or the surrounding areas, and are facing the issue of a lost or contested Will, we can help. To set up a free consultation, please call us today at 423.799.3532 or fill out our contact form.