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Private Client Services Update - All is Not Lost When a Will is Lost - Redux  Print PDF

By Winthrop A. Short Jr. and Private Client Services

All is Not Lost When a Will is Lost - Redux

In February 2015, a Private Client Services Update discussed a case involving a will that had been lost by a corporate fiduciary. Virginia law requires that, in order to be probated, a document purporting to be a will must be an original, with the original signature of the testator, along with meeting other statutory requirements. In the case discussed in the February 2015 Update, the original will had been turned over to the bank that was a fiduciary under the terms of the will. The bank had lost the original will, and therefore petitioned the Court to allow a photocopy of the will to be probated.

Well-established law in Virginia provides that, if an executed will is in the testator’s possession or custody before death, but it cannot be located after his or her death, there is a presumption that the testator destroyed the will with the intent to revoke it. In the decision discussed in the Update, the Court ruled that, because the will was not in the possession of the testator before he died, the presumption in favor of revocation of the will did not apply. Based on evidence from the bank that it had administered the testator’s trust for around 20 years and that the bank had never received any indication from the testator that he wanted to revoke his will, the Court allowed the photocopy of the will to be admitted to probate.

In a case decided after the Update, Edmonds v. Edmonds, 290 Va. 10 (2015), the Virginia Supreme Court considered a case in which the testator was the last person with possession of his original will before his death. As noted by the Court, in that circumstance, the presumption that a testator destroyed his or her will with the intent to revoke it can only be rebutted by “clear and convincing” evidence that the will was lost and not revoked by the testator.

“Clear and convincing” evidence sounds like a very high standard, but, as noted by the Court, it is not the highest standard. “Clear and convincing” evidence is an intermediate standard which is defined as “that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the allegation sought to be established.” The highest standard, “beyond a reasonable doubt,” which applies to criminal cases, requires a higher degree of certainty.

The Court affirmed the decision of the trial Court that the proponent of the will, the testator’s wife, had presented sufficient evidence to overcome the presumption that the will had been revoked, including: (1) the testator and his wife had been married for more than 40 years, (2) the testator and his wife had complimentary estate plans in place to provide for each other and then to pass their estate to their daughter after both had died, (3) several disinterested witnesses testified that, on occasions before his death, the testator had stated his intent that his estate be handled in a manner consistent with the estate plan set forth in the will, (4) the son from a prior marriage of the testator, who opposed probate of the will, testified that he had never spoken with or met the testator, (5) the testator had told a friend that he had no interest in having a relationship with the son from the prior marriage, (6) the son from the prior marriage had never been listed as a beneficiary in any of the testator’s three prior wills, and (7) the testator had never indicated to his wife, or anyone else, that he had destroyed the will or that he wanted to change his estate plan.

The party opposing probate of the will also argued that, in order to overcome the presumption of revocation, the proponent of the will was required to prove what actually happened to the original will. However, the Court held that such proof was not required by Virginia law.

In the Edmonds case, the proponent of the will was able to develop an impressive array of testimony and other evidence in support of her position. In earlier cases involving efforts to overcome the presumption of revocation, proponents have had less success, and the Virginia Supreme Court has been very clear that each case will be decided on its own facts.

Because the presumption of revocation does not arise in circumstances where the original will is turned over to another person or entity, such as an attorney or a bank, the chances of successfully probating a copy of a will, where the original winds up being lost, are higher if the testator takes that step.