Assumption of Revocation
Most state laws assume that if there is no original of a will, the testator, or the person who made it, tore it up or otherwise destroyed it. This is a legal way of revoking a will in most states. Ideally, someone witnessed the testator doing this. If no one saw it happen and an original will cannot be produced for probate after the testator’s death, the law in most states considers it a “rebuttable presumption” that the will was revoked, even if there is a copy. A rebuttable presumption is considered fact unless someone can prove to the court otherwise. A hearing is generally required.
The assumption of revocation is usually eliminated when the testator did not keep the original will in his possession in the first place. Many people leave their original wills with their attorney. If the attorney’s office burns to the ground, the original is destroyed -- but evidence will support that the testator did not destroy it himself, so a copy would be more easily accepted into probate. If the attorney or someone else lost the will, their testimony to this effect would also suffice to prove that the testator did not intentionally destroy it and a copy could be accepted.
Process of Proof
Acceptable proof that the original will was not revoked varies from state to state. The court will probably expect you to prove that the signature on the will is the deceased’s. You might have to call the witnesses to the will to testify that they were there at the signing and that they were never called on again to sign a new will, as well as other credible witnesses to attest that the deceased never indicated to them that he was revoking the original will. In the end, it will come down to the opinion of a judge or jury whether or not the copy is accepted and entered into probate.
If Legitimacy Can’t Be Proved
The worst-case scenario is that you have only a copy of the will and no way of proving to the court that the testator did not destroy the original. In this case, most states treat the probate process as though the deceased died without leaving a will, called intestate, and the state’s intestacy laws take over. This is a statutory list of succession by relatives of a deceased’s estate, generally beginning with spouses and children, then proceeding to parents, siblings and grandparents until a living relative is found.