Procedure for Probating a Lost or Destroyed Will

The Problem: Decedent made a purportedly valid Will that cannot now be found.

The Three Issues

Issue # 1: Did the Document Begin Life As a Valid Will?

What is needed here is the same as for all attested Wills in Washington, namely, proof that it meets the requirements of RCW 11.12.010 and 11.12.020 for a valid Washington Will:

• It was made by an adult.
• The adult was “of sound mind.”
• It was a writing.
• It was signed by its testator etc.
• It was attested by at least two competent witnesses.
• The witnesses subscribed their names to the Will or signed the relevant Affidavit or Declaration under Penalty of Perjury.
• The witnessed did so in the presence of the testator and at his/her direction or request.

As in the usual case, this is most easily shown by showing that the witnesses signed the attestation clause at the end of the Will, either by Affidavit or Under Penalty of Perjury

Issue # 2: Did the Document Remain a Valid Will, ie, Had It Been Revoked?

Is the reason it can’t be found because it was:

• Revoked? Perhaps Decedent tore it up or otherwise destroyed it, intending to revoke it? In this case, Decedent’s intention and acts caused the Will to be revoked, and the Will is no longer valid and cannot be probated. RCW 11.12.040 See: Keeping a Will Valid for the circumstances resulting in revocation of a Will.
• Destroyed? Alternatively, perhaps the Will was innocently destroyed, for example, as a result of a fire in Decedent’s home in which the Will, as well as many other of Decedent’s possessions, went up in flames?
• Misplaced? Or maybe the Will has been inadvertently misplaced, for example, as a result of Decedent’s having moved since making the Will?

In the latter two cases, Decedent neither intended nor took any act to revoke the Will, and the Will should remain valid and able to be probated. RCW 11.20.070 In order to proceed legally, the Will must not have been revoked, and you will need someone who can provide evidence, however circumstantial, of this.

Issue # 3: What Did the Document Say?

This is most easily shown by having:

• Not only a copy of the lost or destroyed Will,
• But also two witnesses (or perhaps only one — see below) who can authenticate the copy as a true and correct copy of the lost or destroyed Will.

Note: It is insufficient merely to file a photocopy of the Will. What is required is not only the photocopy but also a witness (perhaps two, see below) who, from his/her own personal experience, can state that the photocopy is truly a copy of Decedent’s original Will. The photocopy itself is not “a witness.” A carbon copy of a Will plus testimony that the carbon copy is the exact copy of the original Will is satisfactory evidence of its contents. Estate of Auritt and Estate of Nelson, below.

More difficultly, this is shown by having two witnesses (or perhaps only one) who, from memory and their own personal experience, can provide the specific provisions of the lost or destroyed Will, ie, “Several months ago, Decedent showed me his Will. I read it, and what it said was ‘I give $10,000 to the Salvation Army and the residue of my estate to my wife is she survives me and if not to my children and other issue by right of representation.'”

In both of these cases, these witnesses are usually:

• The lawyer who wrote the Will, and
• The secretary who typed the Will.

Lastly, this issue must be proved by “clear, cogent, and convincing evidence.”

Side-bar: What Is Clear, Cogent, and Convincing Evidence? “Clear, cogent, and convincing evidence is that supported by substantial evidence making the existence of a fact highly probable.” Estate of Eubank, 50 Wn. App. 611 (1988). This standard is:

• Considerably higher than the “preponderance of the evidence” (ie, “more likely than not”) standard applicable in most civil trials, and
• Not as high as the “beyond any reasonable doubt” standard applicable in most criminal trials.

In other words, you must substantially make your case and provide more than a reasonable alternative explanation.

Summary of Requirements for Proving a Lost or Destroyed Will

So, what is required to prove a lost or destroyed Will is:

1. The “Revocation” Requirement: Proving by a preponderance of the evidence (ie, “more likely than not”) that the Will has not been revoked; and
2. The “Contents” Requirement: Two witnesses (or possibly only one, see below) who can prove by clear, cogent, and convincing evidence either:
   1. The authenticity of a copy of the Will, or
   2. The contents of the original Will. RCW 11.20.070

   The Deadman’s Statute

   As if the foregoing requirements were not enough, an additional “hidden” requirement is that preferably, the witnesses should not benefit from the lost or destroyed Will, because if they are interested, their testimony is subject to what is known as “The Deadman’s Statute,” which bars, upon objection, the testimony of an interested party regarding any conversation or transaction with the Decedent. In other words, if no one objects to their testimony, it’s admitted (at least regarding the Deadman’s Statute); if anyone does object, it’s barred.

   Side-bar: Before going forward, you may wish to consider if the Will provides for:

   • Distribution differently than if Decedent died intestate?
   • Nomination of a Personal Representative other than from among those provided if Decedent died intestate?
   • More favorable terms than would be available if Decedent died intestate (eg, waiver of Bond or election of Non-intervention Powers)?

   Otherwise, it might be more efficient to avoid the problem of a lost or destroyed Will altogether, consider Decedent to have died intestate, and file a Petition for Letters of Administration.

   Procedure for Probating a Copy of a Lost or Destroyed Will

   For purposes of illustrating the proof of a lost or destroyed Will on this website, we will assume that you have:

   • A copy of the Will.
   • Proof of its execution and validity, ie, either:
     • An attestation clause and the Notarial acknowledgement, or
     • A “self-proving” Declaration at the end of the Will.
     1. Petition Complete and sign a: Petition for Probate of Lost Will & Grant of Letters Testamentary & Nonintervention Powers form.
     2. Lack of Revocation Declaration Print a copy of a: Declaration re Circumstances Surrounding Lost Will & Lack of Revocation form. Have each person you are using to satisfy the revocation requirement complete this Declaration.
     3. Contents/Authentication Declaration
        Print a copy of a: Declaration re Authenticity of Copy of Will form. Have each person you are using to satisfy the contents/authentication requirement complete this Declaration. Suggestions re Completing the Declarations
     4. Copy of Will Complete and sign a Copy of Decedent’s Lost Will & Declaration re Authenticity form and attach a copy of the Will to it.
     5. Order The Order resulting from the hearing on your Petition must set forth the provisions of the Will and be recorded as all Wills are required to be recorded. RCW 11.20.050 To satisfy this requirement, complete and sign an:
        Order Admitting Lost Will to Probate, Setting Forth Provisions of Will,
        & Granting Letters Testamentary & Nonintervention Powers form.
        Now you are at a crossroads as to whether or not you can avoid setting a hearing and sending Notice of Hearing.
     6. Consents & Waivers If each Heir, Beneficiary, and Transferee of Decedent is willing to sign a Consent to your Petition, then complete a Consent to Probate of Lost Will & Grant of Letters Testamentary &
        Nonintervention Powers & Waiver of Notice re Petition form for each such person and obtain all of their respective signatures. “Walk the matter through the Court”
     7. Notice of Hearing & Declaration of Mailing: If you can’t obtain all of the respective signatures for Consents & Waivers, you will need to set a hearing, send notice of the hearing, and file a Notice of Hearing & Declaration of Mailing. To do so:
        • Determine when probate petitions are heard at your Courthouse.
        • Select a suitable date and time for the hearing on your Petition, making sure that your proposed hearing day is at least 20 (+3) days into the future.
        • Complete a: Notice of Hearing on Petition for Probate of Lost Will, Letters Testamentary,
          & Nonintervention Powers & Declaration of Mailing form.
        • Attach to your Notice a copy of:
          • Your Petition,
            
          • All your Declarations, and
          • YourCopy of Decedent’s Lost Will, and …

     • Decedent’s heirs,
     • Decedent’s beneficiaries, and
     • Decedent’s transferees.
     • Petition,
       
     • Declarations,
       
     • Copy of Decedent’s Lost Will, and
     • Notice of Hearing & Declaration of Mailing.
       
     • It would be best if you brought to the hearing all those persons who wrote any of your Declarations so that they would be available to answer any questions the Judge may wish to ask of them. If the Judge wishes to ask a question of such a Declarant who is unavailable, the Judge would likely continue (ie, postpone) the hearing and instruct you to return to the next hearing with all of your potential witnesses.
     • If any interested party objects, the next step would be for your Declarants to testify as witnesses and subject themselves to cross-examination by the objecting party, and then for the objecting party to have its witnesses testify and subject themselves to your cross-examination. Rather than proceed following a party’s objection, WASHINGTON PROBATE would encourage you to:
       • Request a four-week continuance of the hearing from the Court, which should be granted summarily, and
       • Engage the services of an attorney experienced in contested probate matters.

       Ambiguity: Are Two Witnesses Required for the Contents Requirement?

       The legal requirements for proving a lost or destroyed Will in Washington have eased over the years, as a result of the Washington legislature having enacted three successive lost and destroyed Will statutes:

       Rem. Rev. Stat. § 1390 (superceded by Laws 1995,chapter 221): “No will shall be allowed to be proved as a lost or destroyed will unless [it] shall be proved to have been in existence at the time of the death of the testator or be shown to have been fraudulently destroyed in the lifetime of the testator, nor unless its provisions shall be clearly and distinctly provided by at least two witnesses, ….”

       Prior RCW 11.20.070 (superceded by Laws 1994, chapter 205): “No will shall be allowed to be proved as a lost of destroyed will unless it is proved to have been in existence at … the death of the testator, or is shown to have been destroyed, canceled, or mutilated in whole or in part as a result of actual or constructive fraud or in the course of an attempt to change the will …, which attempt has failed, or as the result of a mistake of fact, nor unless its provisions are clearly and distinctly proved by at least two witnesses, …”

       Current RCW 11.20.070: “If a will has been lost or destroyed under circumstances such that the loss or destruction does not have the effect of revoking the will, the court may take proof of the execution and validity of the will and establish it, …. The provisions of a lost or destroyed will must be proved by clear, cogent, and convincing evidence, consisting at least in part of a witness to either its contents or the authenticity of a copy of the will….”

       What is clear is that up until 1995, proving a lost or destroyed Will required:

       • Proof that the Will either:
         • Was in existence at the testator’s death, or
         • Had been fraudulently destroyed before then; and
         • Two witnesses, and
         • “Clear and distinct” (what is now known as “clear, cogent, and convincing”) evidence.
         • Estate of Harris, 10 Wash. 555 (1895): “The law presumes that a will proved to have been in existence and not found at the death of the testator was destroyed by him animo revocandi, …. This presumption of revocation … is overcome and rebutted where it appears that the testator, after the execution of the will, deposited it with a custodian and did not thereafter have it in his possession or have access to it.” At page 560.
         • Estate of Robinson, 149 Wash. 307 (1928): “While [the testatrix] had the right of access to [her will], she did not have actual access to it…. The burden, therefore, of retracing it into the hands of the testatrix [to show that she destroyed it] is upon the contestant. [Citation omitted.]” At page 310.
         • Estate of Auritt, 175 Wash. 303 (1933): “To rebut [the presumption of revocation], evidence as to the testator’s attitude of mind, as indicated by his declarations made between the time of executing the will and the time of his death, are admissible…. In the case before us, the evidence is abundant and ample … that [the testatrix] bore a very strong affection for [the beneficiary of her will]; that her attitude toward him never changed from the time that she made her will until the time of her death; and that she repeatedly affirmed, up to within a few days of the fatal tragedy, that she had made her will in [her beneficiary’s] favor…. [W]e can come to no other conclusion than … [she] never revoked her will, but that it was in existence, somewhere, at … her death.” At pages 308-9.
         • Estate of Calvin, 188 Wash. 282 (1936): “The two witnesses required by statute must each be able to testify to the provisions of the will from his or her own knowledge, and not from the declarations of another, even the testator himself.” At page 289.
         • Estate of Kerckhoff, 13 Wn.2d 469 (1942): “A man cannot perpetuate a fraud, either actual or constructive, upon himself.” At page 484. Therefore, if a will is destroyed in the testator’s presence and at his discretion, the will is not “fraudulently destroyed” within the meaning of the statute.
         • Estate of Wind, 27 Wn.2d 421 (1947): “The mandatory provisions of the statute … require that before it can be held that a will has been revoked by burning, it must be proved … that the burning was done at the testator’s request and in his presence. … [The will] was fraudulently destroyed because the destruction was unlawful and one to further the financial interests of [the destroyer]. At pages 425-26.
         • Estate of Peters, 43 Wn.2d 846 (1953): The contents of a will need to be clearly and distinctly proven by at least two witnesses, who are not required to be its attesting witnesses.
         • Estate of Gardner, 69 Wn.2d 229 (1966): Decedent’s nephew obtained her will and destroyed it by burning. “Normally, proof of a will being destroyed prior to testatrix’s death raises a rebuttable presumption of revocation. [Citations omitted.]
         • Estate of Nelson, 85 Wn.2d 602 (1975): “The language of [RCW 11.20.070] and our cases interpreting it establish four prerequisites to the admission of a lost will to probate:
           2. But [it] must have been in existence at the time of the testator’s death,
           4. Its contents must be proven “clearly and distinctly” by the testimony of at least two persons.
         • [Citations omitted.]” At page 605. “Three witnesses all recounted conversations they had had with Decedent a short time before she was killed which indicated that she would not have destroyed her will without making another…. Further, the circumstances surrounding Decedent’s death provide a possible explanation for the whereabouts of her will which is consistent with its having been in existence at that time. The burglar who shot her took from her apartment a lockbox…. This box was apparently used by Decedent as a repository for her valued papers and may well have contained her will.” At pages 606-7. “Although these facts hardly establish beyond doubt that Decedent’s will existed at … her death, they are persuasive enough…. Proof on [the issue of the will’s existence at the testator’s death], unlike proof of a lost will’s contents, need not be “clear and distinct” and will often be largely circumstantial. [Citations omitted.]” At page 607.
         • 3. It must have been properly executed, and
         • 1. The will must have been lost or destroyed,

         What is clear from Laws 1994 and its legislature history is that after 1994, proving a lost or destroyed Will:

         • No longer requires proof that the Will:
           
           • Was in existence at the testator’s death, or
           • Had been fraudulently destroyed before then; and

           What is unclear, however, is whether the contents of the Will requires proof by more than one witness.

           Argument that one witness will suffice: RCW 11.20.070 provides no express requirement for two witnesses, as did prior law, and states in pertinent part “The provisions of a lost or destroyed will must be proved by clear, cogent, and convincing evidence, consisting at least in part of a witness [emphasis added] to either its contents or the authenticity of a copy of the will….” The statute says “a witness” — one witness, not “two witnesses.” Under this express requirement, one witness should suffice.

           Argument for at least two witnesses: The only judicial interpretation of current RCW 11.20.070 made so far is in Estate of Black, 116 Wn. App. 476 (2003); Rev. denied at 150 Wn.2d 1020 (2003). There, the Washington Appeals Court stated:

           Proof of the execution of a lost will is by a preponderance of the evidence. [Citation omitted.] The contents of the will must be proved … by ‘clear, cogent, and convincing’ evidence. RCW 11.20.070(2). [At pages 483-4.] The proponent must prove that the will was in existence at … the testator’s death, and that it was properly executed. The evidence must consist ‘at least in part of a witness to either its contents or the authenticity of a copy of the will.’ RCW 11.20.070(2). The will’s contents must be proved ‘clearly and distinctly’ by testimony of at least two persons. [Citation omitted.] These need not be the two attesting witnesses to the original will as required by RCW 11.12.020(1)…. [The proponent] produced the evidence called for in RCW 11.20.070 in the form of the affidavits of [the attorney who prepared the will] and [an attorney who served as one of the will’s attesting witnesses]. An attestation clause is prima facie evidence that the instrument was signed by the witnesses in the presence of the testatrix and at her discretion. [Citation omitted.] This will contains an attestation clause. The only way for the opponents to disprove the evidence offered in support of the will would be to produce some evidence tending to undermine the credibility of [the two affiants].” [At page 484.]

           As no such undermining evidence was produced, the Court admitted the lost Will.

           • Regarding the prior “in existence at the testator’s death” requirement, the Court stated the law as it had been up through 1995 but had thereafter been superceded. On this issue, the Court misstated the applicable law.
           • Regarding the “number of witnesses required to prove the contents” requirement, the Court also stated the law as it had been up through 1995 but thereafter had been superceded by a statute requiring only that “The provisions of a lost or destroyed will must be proved by … evidence, consisting at least in part of a witness to either its contents or the authenticity of a copy of the will….” On this issue, the Court also stated the old law, and, according to the express words of the current statute, appears again to have misstated the applicable law.
           • Furthermore, under the facts and circumstances presented in Estate of Black, the Court did not have to determine this precise issue, namely, whether the “contents” requirement had to be proven by two witnesses or only one. Therefore, the Court’s statement that two such witnesses are required is not binding and does not provide further authority on this issue.

           What is needed to resolve this ambiguity is a lost or destroyed Will case in which only one witness is available who can prove its contents by clear, cogent, and convincing evidence.