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Wednesday, January 16, 2019

Can I probate a PDF copy of a will if the original can't be found?

Wills occasionally go missing. This can be problematic when the testator has passed away and nobody knows where he or she has stored the document, or even whether the will still exists. A reader recently sent me a note about this situation. The question and my response are below:

"If we can only find a copy (PDF) of the will, can it still be probated? Can the witness just sign an affidavit stating that it is true?"

It's not impossible to probate a copy of the will, but it is extremely difficult. There is no automatic or express process to do this. You would have to persuade a judge to grant the probate based on the facts of the situation.

The law requires that an original will be provided when someone applies for probate. There is a reason for this; the law presumes that if an original will cannot be found, the owner of the will destroyed it. This makes sense, because if you changed your mind about your will and tore it up, it would be a true miscarriage of justice if someone could take a copy of that destroyed will to probate.

This presumption is what makes it difficult to probate a copy of a will. The affidavit that you mention in your question would not be of limited use in terms of probating a copy. Yes, it might say that the copy was a true copy of the person's will (if the witness was someone who was familiar enough with the details of the original document), but it would not address the issue of the whereabouts of the original.

Whether or not a judge would be willing to allow you to probate a copy of the will would depend on the circumstances. For example, I recall a case in which I was successful in probating a copy of a will of a man who passed away. He and his wife had made their wills with a lawyer at the same time and the wills were in most aspects mirrors of each other. Not long after the wills were made, the man became ill and soon after that, was diagnosed with the early signs of dementia. To prove to the court that the deceased had not destroyed his will, his wife gave evidence that they had always done their planning together, that she had been managing the family's legal and financial matters for a while due to her husband's illness, and that he had had no wish and no opportunity to change his will. The original will couldn't be found but the wife deposed that she was positive it had been misplaced, not destroyed.

Other relevant facts in the case were that the copy had the (photocopied) signature and initials on it, the wife had searched extensively for the original, that the will left a large portion of the estate to the wife but not solely to her, and that the wife was not interested in pursuing a dependent's relief claim for the part of the estate she was not going to receive.

In that case, the judge believed the witness and allowed the probate to be granted. As I said, each case will have to be decided on its own facts, and on the issue of whether the evidence is strong enough to overcome the presumption that the testator destroyed his own will with the intention of revoking it.


5 comments:

  1. Great post. I continue to be amazed at everything I learn from your site. Thanks again.

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  2. When .my.mom.pa as away at talk when this guy at the funeral who make the preperationt and he told that my.mon was not my real mon .did he saw that in the will .I ask my sister after and she no way it not true .

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    Replies
    1. That's a hell of a thing for someone to say at a funeral. Obviously I don't know whether he saw it in the will or not because I haven't seen the will either. It's possible that your Mom put something in the will that says she isn't your mother, especially if she handwrote her own will without a lawyer, but saying something like that would be pretty unusual.

      In the next little while, the will should become available as the executor begins the process. At that time, you'll be able to see what it says.

      In the meantime, don't spend your time worrying over what this person said. If you want to get to the bottom of it, why not start by getting a copy of your birth certificate and see what it says?

      I wish you the best with this and I hope you don't get any unwelcome surprises.

      Lynne

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  3. This is great. Thanks

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