The decision sends important messages to anyone who may run across such situations, and to Personal Representatives in general.
The deceased made a Will in 2004. The original was to have been kept in a credit union branch safety deposit box. It never arrived.
After her death in 2012, her Will could not be found, despite extensive searches. What was found was an unsigned copy.
The deceased’s longtime lawyer prepared the Will, and since he was named the Personal Representative, he gave the Will to another lawyer to review and sign with the (now deceased) Will maker.
A Will believed to be in the Will maker’s possession, but lost after their death, is presumed to have been destroyed and revoked. But, that legal presumption can be overcome on evidence.
And, if the Will maker becomes incapacitated or mentally ill after the Will is signed, the presumption is understandably weakened. In fact, the person who alleges the Will was revoked then has the burden of proving it was destroyed while the Will maker had capacity.
In this case, the people alleging that the Will was revoked (two nephews) could not meet the burden of proof.
The Court found that the Will maker did not intend to revoke her Will. The Court also found that, if the Will maker had really wanted to change her Will in any way, she had the unlisted telephone number of her lawyer and so could have communicated with him (but she didn’t).
The other lawyer added that the Will maker did actually sign her Will.
This case is important. One message I believe it sends is that a person should never throw away anything related to preparing a Will (notes, copies of the Will, etc.). You never know what may later become important in establishing whether the Will was signed, and its contents the same as the copy that (in this case) was probated the Court.
This ad ran in the Richmond Review on June 27, 2014.