Can a Lost or Destroyed Will Still Be Probated in Washington?

Everyone in the family knows Dad signed a will. There is a photocopy in a folder, and the lawyer who drafted it still has the file. But the signed original is not in the desk, the safe, or anywhere else anyone can think to look.

A missing original does not automatically mean there is no will. Under RCW 11.20.070, a Washington court can establish a lost or destroyed will and admit it to probate. The person asking has two things to show: that the will was lost or destroyed in a way that did not revoke it, and what the will said, proved by clear, cogent, and convincing evidence. Both can be done, and neither is easy.

What RCW 11.20.070 Allows

The statute applies when a will has been lost or destroyed "under circumstances such that the loss or destruction does not have the effect of revoking the will." In that situation the court may take proof of the will's execution and validity and establish it, after notice has been given to all persons interested.

Once the will is established, it is treated like any other. The statute requires its provisions to be distinctly stated in the court's judgment, the judgment is recorded the way wills are recorded, and the court may appoint a personal representative just as it would if the original had been presented. From there the estate moves forward as described in how to start the probate process.

The First Hurdle: Was the Will Revoked?

RCW 11.12.040 says how a will is revoked. One way is a later will. The other is a physical act: the will is burnt, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it, by the person who made it or by someone else in that person's presence and at that person's direction. Intent is the key. A will lost in a move, ruined in a flooded basement, or thrown out by a relative cleaning the house was not revoked, because the person who made it never meant to revoke it.

The difficulty is that a missing will looks the same either way, and Washington courts start from a presumption that works against the will. The Court of Appeals addressed this in In re Estate of Bowers, 132 Wn. App. 334, 131 P.3d 916 (2006), confirming that a long-standing common-law rule survived the 1994 amendment of the statute: when a will known to have existed cannot be found after death, the law presumes the person who made it destroyed it intending to revoke it. The court also read RCW 11.20.070 as requiring the person offering the lost will to prove that it was not revoked.

The presumption can be rebutted. Bowers itself is an example. The woman who died had asked her lawyer for a new will, never signed it, and her earlier will could not be found. The court held that the evidence showed any revocation of the old will depended on the new one taking effect, and that she never meant to die with no will at all. It affirmed the order admitting a copy of the earlier will. The court noted that the presumption can be answered with evidence of the person's state of mind, shown by what he or she said between signing the will and death.

The Second Hurdle: Proving What the Will Said

Showing that the will was not revoked is only half the case. RCW 11.20.070 requires the provisions of a lost or destroyed will to be proved by clear, cogent, and convincing evidence. That is a demanding standard, higher than the one used in most civil cases.

The statute also says what that proof must include: at least in part, a witness to either the contents of the will or the authenticity of a copy. A photocopy alone is not enough. Someone has to be able to say that the copy is a true copy of what was signed, or to testify to what the will provided. In practice that is often the lawyer who drafted it. The proof must be put in writing, signed by the witnesses who testified to the will's execution and validity, and filed with the court clerk.

With no copy at all, proving every provision to this standard is difficult.

What Happens in the Meantime

Lost-will cases take time. Sometimes a different personal representative has already been appointed, either because the family believed there was no will or because an older will was admitted. RCW 11.20.080 gives the court authority to restrain that personal representative from acts that would injure the people claiming under the lost or destroyed will while the application is pending.

Before filing anything, it is worth confirming the will is truly lost. RCW 11.12.265 allows an original will to be filed with a court under seal during the maker's lifetime, and the Snohomish County Superior Court Clerk's Office in Everett maintains a will repository for that purpose. The drafting lawyer's file is the other obvious place to check. If the original exists but someone is holding it back, that is a different problem with a different remedy, covered in what to do when someone will not turn over the will.

Electronic Wills Can Land Here Too

RCW 11.20.070 also reaches some wills that were never lost in the ordinary sense. It applies its proof requirements to an electronic will whose custody has not been maintained by a qualified custodian. So an electronically signed will that was simply saved to a computer may have to be proved the hard way. The article on signing a will electronically in Washington explains the custodian rules.

A Worked Example

Frank, who lived in Snohomish, remarried late in life. His will left his house to the two children of his first marriage and everything else to his wife, Carol. He kept the original in a file box in the garage. After his death, only a photocopy turns up.

Frank's children ask the court to establish the will. Carol objects, pointing to the presumption that a will that cannot be found was destroyed on purpose. The children answer with evidence: a roof leak two winters earlier soaked the garage and several file boxes were thrown away, and Frank told a neighbor a month before he died that "the will takes care of the house." The lawyer who drafted the will testifies that the photocopy matches the copy in her file.

If the judge is persuaded that Frank did not destroy the will intending to revoke it, and finds the copy's terms proved by clear, cogent, and convincing evidence, the will is established and its terms are written into the judgment. If not, Frank's estate passes as though the lost will did not exist, which could change who receives the house.

Do Not Let a Missing Original Decide the Outcome

Storing the signed original securely, and telling the appropriate person where to find it, can prevent a lost-will dispute. When the original is already missing, the evidence that can save the will, such as copies, the drafter's file, and the people who remember what was said, should be gathered early. The Law Office of Chad Foster helps families evaluate and present lost-will cases. Call 425.785.8679 to talk with a Snohomish County probate attorney about your situation.