The Virginia Supreme Court clarifies the burden in cases of lost original Last Wills.
An original Last Will and Testament is needed when a person goes to the Circuit Court Clerk to probate a will. Courts can accept a copy, but before the court will probate a copy the person presenting a copy must overcome a presumption that the original was destroyed by the testator with the intent of revoking the Last Will. Additionally, that presumption of revocation can be overcome only by “clear and convincing” evidence that the testator did not revoke the Last Will.
On June 4, 2015 in Edmonds v. Edmonds, the Virginia Supreme Court upheld an Arlington County trial court decision finding that the proponent of a copy of a Last Will proved that the Will was not revoked. In Edmonds the decedent was survived by his second wife, a daughter by that marriage, and a son by a prior marriage. When he died in 2013 his original Will, done in 2002, could not be found. In that 2002 Will he had not left anything to his son. His son challenged the widow’s efforts to probate a copy of the 2002 Will, and after the trial court held in widow’s favor the son appealed to the Virginia Supreme Court. The son argued that in order to meet the clear and convincing standard of proof, the wife needed to prove the cause of the disappearance of the Will (a cause, of course, other than the testator destroyed the Will). The Supreme Court rejected this argument and made it clear “that it may very well be impossible for the proponent of a missing will to explain what happened to the will, and therefore the statements of the testator regarding his testamentary intentions may be the best evidence to rebut the presumption of revocation.”
The Edmonds case should block future arguments that a proponent of a copy of a Will must prove what happened to the original Will, but the “take-away” from the case is a reminder to safely and securely store your original Last Will and other estate plan documents, and provide instructions and access only to those persons you trust completely.
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