An important part of the estate planning process is keeping the will in a safe, accessible location. Unfortunately, there may be instances when the will is lost, unintentionally destroyed, or otherwise not available for the probate process. This article will discuss:
- What is a lost will?
- What is the general probate process?
- Will an Iowa Court consider a lost will?
- What must someone prove to establish a lost will?
- What is due execution of an Iowa will?
- What evidence will a Court consider in lost will cases?
What is a lost will
In Iowa, a lost will must have once existed in writing. It must have been properly executed under the law and never properly revoked.
What is the general probate process?
When someone dies, their estate enters probate. The assets and property of a deceased person, referred to as the decedent, are collected into an estate. These assets are distributed to beneficiaries and debts are paid to creditors. The probate process begins whether a will exists or not. The person who works to distribute the assets, pay creditors, and take other actions in winding up the estate is called the personal representative. This person is called an executor if there is a will, and an administrator if there is no will. The administrator or executor must file a petition with the clerk of court beginning the probate case within a specified period of time. If the spouse is the administrator, the period is twenty days.
If there is no will, the personal representative will distribute the assets in through a statutory process called intestacy. Under this process, the deceased person’s wishes are not accounted for, and the property is distributed according to statute. A will, on the other hand, provides a roadmap for the executor to distribute the property. A person should draft a will if they want their property distributed in a way which differs from the intestacy statutes.
Many lost will cases involve persons who would receive some benefit, or a greater benefit, under the provisions of the lost will. Many of those contesting the entry of the lost will into probate are those who would receive a greater benefit under the intestacy statutes.
Will an Iowa Court consider a lost will?
Iowa law does allow courts to consider lost wills. Courts, as always, wish to carry out a decedent’s true intentions if possible. However, there is a presumption that if a will is not available, it has been revoked, or cancelled, by the decedent. This is called the presumption of revocation. This presumption makes introducing a lost will into probate difficult. The proponent, the person advocating for the lost will to be admitted, must prove several things to overcome the presumption.
What does someone need to do to establish a lost will?
To establish a lost will, the proponent must prove by clear, satisfactory, and convincing evidence (ie, no serious or substantial uncertainty about the conclusion to be drawn from it):
- Due execution and former existence of the alleged will
- That it has been lost and could not be found after diligent search
- That the presumption of destruction by decedent with intent to revoke it, arising from its absence at death, has been rebutted, and
- Contents of the will
What is due execution?
The proponent must show that this will actually existed and was properly executed. Proper execution in Iowa means the will was in writing, signed by the testator (person to whom the will belongs) or another person in their presence, declare the document as their will in the presence of two people acting as witnesses, and have the witnesses sign the document in the presence of each other. Iowa recognizes wills executed in other states, if the will is in writing and meets the execution requirements of the particular state. The person must have been mentally competent at the time of signing the will.
Related to due execution is the issue of proper revocation of wills. In one case, a woman read the entirety of a new will to her mother over the phone in the 1990s. However, the woman had a properly executed will from 1968. Though there was evidence she intended to create a new will with different terms, there was no evidence she properly revoked the 1968 will. If a proponent wishes to admit a lost will, they should make sure any prior wills are properly revoked.
What evidence may a court consider to prove a lost will?
Due to the nature of these cases, parties usually must turn to circumstantial evidence to establish or refute a lost will. Circumstantial evidence relates to a series of facts, other than the fact sought to be proved. The person argues that, because of these facts and circumstances, the fact sought to be proved must be true.
The court may hear testimony from people who witnessed the person with the will, spoke with the person about the will, or heard a person say the will was lost. The court may also see an unsigned copy of the will, in conjunction with testimony that that an identical version of the will was also validly executed. In one case, the court heard evidence that an unsigned copy of the will, with the word “Will” written at the bottom, kept in the safest place in his home, was his will.
To prove that the presumption of revocation has been overcome, the proponent may also introduce evidence of a decedent’s “declarations” by circumstantial evidence. The court also considers the decedent’s relation to people they made the declaration to. Declarations made to disinterested persons not taking under the will have more weight than statements to interested persons. One case held that statements made to a third person saying how much he disliked his family was evidence he did not intend to revoke his will (if his will was revoked, his family would have taken his property under intestacy laws).
Courts have also considered situations where people with access to the supposed will had adverse interests to the will; for instance, if a child is cut out of the will, but comes into possession of the will. An adverse person having access to the will weighs in favor of a finding that the decedent meant to revoke their will. This is because a decedent intending to main their will probably would not place their will with someone who is motivated to destroy or alter it. However, this is only one factor the court considers, and there are many reasons why such a person could gain access to the will.
Ultimately, rules involving lost wills can be complicated. It is always preferable to have a valid copy of a will available, and to be clear when creating, modifying, and revoking a will. At O’Flaherty Law, we have attorneys who have experience in all parts of the estate planning and probate process. Please feel free to call today for a free consultation.
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