An adult child recently fought against the admission to probate of a copy of his biological father’s missing will. The adult child insisted that, without proof of what happened to the will, its copy could not be admitted to probate. Without proof of what happened to the lost will, the adult child argued, the lost will’s proponent could not overcome the legal presumption that the decedent must have intended to revoke the will. The trial court disagreed, admitting the copy of the missing original of the will to probate.
An appeal followed, challenging the trial court’s ruling. The Virginia Supreme Court upheld the trial court’s decision to recognize and admit to probate the copy of the lost will. Notably, in doing so, the Court clarified more than a century of case law. The Court held that the proponent of the lost will did not have to prove what actually became of the decedent’s will.
Although the Court recited the evidence in support of the trial court’s holding, it did not limit its ruling to the specific facts of the case presented. The Court did note, however, that the proponent of a lost will had to overcome the presumption of revocation that applied if the original will was in the testator’s custody. That is, the proponent of a lost will still had to prove that the testator “did not destroy the will with the intention of revoking it.” The proponent of the lost will in the case at issue had met that burden under the applicable “clear and convincing evidence” standard. The case is Edmonds v. Edmonds (Va. 2015).