Lost Will

Having a will is an important step for every responsible person who owns property. Making certain that the will is available after one’s death is the next important step, because a will won’t do much good if it can’t be found. If the signed copy of a will cannot be located, it may be presumed that it was revoked by being destroyed. However, the presumption can be overcome, as shown in this recent case.

As Patricia Lynch-Carbaugh aged, she had trouble keeping her household. She was estranged from her two sons. Patricia had a will executed by attorney Donna Wilson in 2018, and enrolled in a “mainte­nance program” that allowed for updating her estate planning documents at no additional cost. Patricia updated those plans three times, the last time being in July 2020. She paid for the maintenance program through August 2021, but Patricia died in March 2021.

That final update to the will included a specific disinheritance of the sons “for reasons personal to [Lynch-Carbaugh] and known to them.” After Patricia died, her executor was unable to locate the final will in the mess that her house had become. There was evidence of rodent infestation, and docu­ments littered all over the home. The disarray was documented with photographic evidence. The exec­utor produced a copy of the last will for probate.

The estranged sons objected that there is a presumption that, when a will cannot be located, it has been revoked by the testator through destruction. True, ruled the court, but the presumption may be over­come by clear and convincing evidence. Here, the condition of the house provided an explanation for the failure to locate the document. Given her subscription to the maintenance program, it was unlikely that Patricia would have revoked her will without consulting the attorney she had prepaid for services. There was no such consultation, nor any other indication from others that Patricia had entertained second thoughts about the July 2020 draft of the will.

The sons were evidently hoping that if the will were tossed, they would inherit Patricia’s estate by intestacy. But the court observed that “the explicit exclusions of her sons in her will indicated a clear desire that her estate not pass by intestacy; indeed, her lawyer testified that she was consistent that she wanted charities to inherit her estate.” Taken as a whole, the evidence overcame the presumption, and the sons lost.

(November 2023)

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