State High Court Ruling Provides Guidance Regarding Missing Wills, Says LeClairRyan Attorney

Will Sleeth

A June decision by the Virginia Supreme Court clarifies that an individual seeking to probate a photocopied will is not required to prove a specific reason why the original will was lost, according to William Sleeth III, a partner in LeClairRyan’s Williamsburg office who also leads the national law firms Estate and Trust Litigation team.

Under Virginia law, a party seeking to probate a will must probate the original will, and not a photocopy, says Sleeth, in a recent posting on his blog: In the vast majority of instances, this does not pose a problem. However, in some instances, no one can locate the original will. Virginia law provides that in those situations, a proponent of a non-original will may petition the circuit court to order that a copy of the will be admitted to probate.

But the party that petitions the court must overcome a hurdle: if the will was last known to be within the custody of the testator (the creator of the will), then a presumption arises that the testator destroyed the original with the intent to revoke it.

The Virginia Supreme Court confronted this issue in Edmonds v. Edmonds, 2015 WL 3505183 (2015), when the decedent, James A. Edmonds, Jr. (Edmonds), was survived by his wife, Elizabeth Cashman Edwards (Elizabeth), his daughter from their marriage, and a son, James Christopher Edmonds (Chris) from a prior marriage.

Edmonds executed a will in 2002 that intentionally omitted his son. But when Edmonds died in April 2013, the original will was missing–although photocopies were located in a filing cabinet in his office.

His wife, Elizabeth, filed a petition in Arlington Circuit Court to probate a copy of the will. But son Chris contested it since, if the copy of the will was not admitted to probate, his father would be deemed to have died without a will and the son would automatically receive a portion of the estate.

The trial court ruled in favor of Elizabeth, holding that despite the unexplained disappearance, she had proved by clear and convincing evidence that the 2002 will was not revoked, and that the copy should be admitted to probate. That evidence included testimony from numerous witnesses who stated that the decedent had told them that he did not want to leave any portion of his estate to his son, and that he intended to leave everything to his wife.

But Chris appealed to the Virginia Supreme Court, arguing that in order to meet the burden of proof of clear and convincing evidence, the proponent of the photocopied will must prove some explanation for the disappearance of the original, rather than simply offering general proof that the testator did not intend to revoke the will.

Based on its prior decisions, the Virginia Supreme Court ruled for Elizabeth, reaffirming that a proponent of a missing will is not required to specifically prove what became of the missing will. Although the Virginia Supreme Courts ruling does not break new ground, it should serve to be the nail in the coffin to any argument that a proponent of a non-original will must specifically prove what became of the original, Sleeth says.

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