Probate Code §8223 allow a lost or destroyed will to be proven. It requires the petition for the probate of a lost or destroyed will and a summary or short version of the testamentary provisions. In many cases, the lost or destroyed will can be admitted in probate.
Prob C §6124 establishes a presumption concerning lost wills. It provides:
If the testator’s will was last in the testator’s possession, the testator was competent until death, and neither the will nor a duplicate original of the will can be found after the testator’s death, it is presumed that the testator destroyed the will with intent to revoke it. This presumption is a presumption affecting the burden of producing evidence.
An example of a lost will admitted is where the will was in a safe deposit box and the bank no longer exists or has records of the box. Same is true, if the will was lost in transit to the executor or other entity.
The presumption only applies if there is a will contest and affects the burden of producing evidence. See Evid C §601 and Prob C §6124. See Estate of Moramarco (1948) 86 CA2d 326. See also Estate of Trikha (2013) 219 CA4th 791. Under Prob C §8000(b), a petition for probate of the decedent’s will may be made regardless of whether the will is in the petitioner’s possession or is lost, destroyed, or beyond the jurisdiction of the state.
A photocopy of a will is not a duplicate original for purposes of Prob C §6124; thus, the presumption of revocation applies. Lauermann v Superior Court (2005) 127 CA4th 1327. A lost will (i.e., a copy that is not a “duplicate original”) must be proven in the same manner as any other will.
The Petition for Probate (Judicial Council Form DE-111) (see §7.49) now includes a set of items to complete if the will has been lost or destroyed. These include:
For more information about lost wills in California Call Sirkin Law Group, Will Lawyers in Los Angeles at 818.340.4479 or email [email protected].
