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WA-Probate > Probate Instructions > Opening the Estate > Probating a Lost or Destroyed Will

 

Washington Probate Instructions

 

 

Procedure for Probating a Lost or Destroyed Will

  1. The Three Issues

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

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 Issue # 2: Did the Document Remain a Valid Will, ie, Had It Been Revoked?

    3. Issue # 3: What Did the Document Say?

    4. Summary of Requirements for Proving a Lost or Destroyed Will

    5. The Deadman's Statute

  2. Procedure for Probating a Copy of a Lost or Destroyed Will

  3. Ambiguity: Are Two Witnesses Required for the Contents Requirement?

 

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

 

 

A.  The Three Issues    

 

1.  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:

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

 

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  Issue # 2: Did the Document Remain a Valid Will, ie, Had It Been Revoked?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

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  RCW 11.20.070  In order to proceed legally, the Will must not have been revoked, and you will need someone who can provide evidence, however circumstantial, of this.

 

3.  Issue # 3: What Did the Document Say?    

 

This is most easily shown by having:

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:

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:

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

 

4.  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

5.  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:

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.

 

 

B.  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:

 

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:

Notice of Hearing on Petition for Probate of Lost Will, Letters Testamentary,
& Nonintervention Powers & Declaration of Mailing
form.

8.  Attend the Hearing

 

C.  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:

See:

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

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.

 

Comments:

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.

 

 

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