Can a Copy of a Lost Will be Admitted to Probate in Illinois?

If you’re anything like my law firm, you may be trying to digitize files and keep less paper. It generally works great — easy searchable access to files at your fingertips without having to chase down documents hidden away in file boxes or cabinets. The evolution will continue toward paper-less, though probably never entirely paperless.

One area though where paper remains important now and for the foreseeable future is original estate planning documents — and in particular — wills. We always stress to clients the importance of proper storage of original estate planning documents. Estate planning documents that nobody knows about because they are so well-hidden that they can never be found by anyone may be worse than no plan at all. And digitized copies are good, but alone are not legally sufficient.

But what can you do if you find yourself in a situation where you have a copy of the will for a recently deceased loved one, but just can’t find the original anywhere? Is the copy worthless? Can it possibly be admitted to probate?

The presumption of revocation for lost wills

If the original will cannot be found, there is a legal presumption that the reason the original cannot be found is that it was revoked. After all, methods in the Illinois Probate Act (755 ILCS 5/4-7(a)) for revoking a will include:

• Burning (for dramatic effect!?)
• Tearing (think shredder); and
• Obliterating (is this extreme shredding? Sounds messy).

On a petition to admit a copy of will to probate, the legal presumption of revocation carries the day unless the presumption is rebutted (overcome) by clear and convincing evidence that the testator did not, in fact, revoke the will.

Overcoming the presumption of revocation

We all know that proving a negative (that something — in this case, revocation — did NOT happen) is difficult. Each case turns on its own facts, but examples of situations where the presumption might be overcome include:

• Decedent died in a house fire and there is evidence that the will was stored at home
• There is evidence that the decedent was never in possession of the will and the will’s absence is not explained by revocation
• The will was lost or destroyed AFTER the testator’s death (willfully altering, destroying or secreting a will after death can also be prosecuted as a Class 3 felony).

Again, there may be other facts and circumstances that may be appropriate for a given situation, but some substantial proof must be provided at hearing to explain away the original will’s absence.

As a practical matter though…

If all heirs AND legatees agree to have the copy admitted, the court may permit admission to probate without a formal hearing. This is a possibility if the heirs and legatees are identical — that is to say, the will simply follows intestacy law.

Original or copy? The spit test

Copy machines have gotten so good that sometimes it can actually be difficult to tell if you’re looking at an original or a copy. While there are actually sophisticated ink testing procedures that can be performed, suffice to say that such testing methods don’t reside on the judge’s desk. At least one local judge has been known to apply a “spit test” when the signature appears to not be original. That is to say, the judge applies some moisture to the signature to determine the “smudginess” (my word) of the ink.

It’s much easier to determine original vs. copy when the ink is something other than black. This is why we have clients execute estate planning documents in blue, rather than black, ink. We want the original to stand out.

The bottom line

An ounce of prevention is worth a pound of cure. Be sure that your successors can find your original will (and other estate planning documents). If you’ve misplaced your own original will, execute a new one. Rest assured, you won’t be the first — or last — person to misplace original documents.

But if you find yourself in a situation where you can’t find the decedent’s original will, it may not be a lost cause. It might be possible to have the copy admitted to probate — if you can successfully overcome the presumption of revocation.

Image courtesy of Stuart Miles / freedigitalphotos.net