A Lost or Destroyed Will: Estate Litigation in California

A will is a public document outlining his or her wishes with regard to distribution of the estate after death. But, because many people wisely create wills long before their death while unwisely failing to keep the will in a safe, accessible place, in many cases that will ends up either lost or destroyed. Which raises the question — if a California will in which you have a financial or other material interest has been lost or destroyed, how can you take action to protect your interests and fulfill the original intentions of the deceased?

General Requirements for a California Will

California Probate Code Section 6110 lays out the legal requirements of a will. Broadly, the will must be in writing, and the testator (person creating the will) must sign the document or someone must sign it at the testator’s direction. There must also be two witness signatures of people present at signing, affirming that the will is valid and was actually created by that person, or there must “clear and convincing evidence” of the testator’s intent that the will represent his or wishes.

If a Will is Lost Or Destroyed

If the testator destroyed the will with the intent of revoking the will, through such means as burning, tearing, or canceling the will, then California law will presume that the destroyed will is no longer effective and it will not be admitted to probate.

But what happens if the will is lost? Probate Code Section 6124 says that:

If the testator’s will was last in the testator’s possession, the testator was competent until death, and neither the will nor a duplicate original of the will can be found after the testator’s death, it is presumed that the testator destroyed the will with intent to revoke it. This presumption is a presumption affecting the burden of producing evidence.

What this means is that, if the will was last shown to have been in the testator’s possession, and it cannot be found, then the will will be presumed to have been destroyed.

Note, however, that this is only a presumption. If no other evidence is produced, then the presumption that the will was destroyed will stand, and the contents of that will will not be admitted into probate.

Overcoming the Presumptions Associated with a Lost and/or Destroyed

The fact that a will was either lost or destroyed does not have to be the end of the story for a beneficiary of the will seeking to have it admitted into probate.

If the will appears to have been destroyed through burning, tearing, cancelling it out with a huge red “X” across the front, and so on, the proponent of the will is going to attempt to prove to the court that the alleged action to destroy the will was not taken with intent to destroy the will. For example, if the will was burned, it might be argued that it was burned accidentally. If the will was torn, it might be argued that another person tore the will, not the testator.

If the will is lost, then there are several arguments that might be made to support admitting its contents. Probate Code 6124 will only apply if the will was last in the testator’s possession, so it might be argued that the will had been stolen or left with another for safekeeping (i.e. a safety deposit box) when it went missing. Also, even if the will was in the possession of the testator when it went missing, similar arguments regarding the lack of intent to destroy the will could be made: the will might have been lost in a house fire, or it might have inadvertently been disposed of. A good probate attorney will conduct a full investigation of the circumstances to determine the best arguments for admission of the lost or destroyed will into probate.

Working with an Experienced Probate Attorney to Prove the Intent of the Testator

Estate planning and probate attorney Christopher B. Johnson, located in Pasadena, California, has the experience to navigate even the most complex estate issues in probate court, including will contests and cases involving lost or destroyed wills. To request an immediate consultation, contact him today at (877) 755-9178.