Proving a Lost or Destroyed Will in an Ohio Probate Court
March 5th, 2012
Getting a spoiled, lost or destroyed will to be accepted by an Ohio probate court can be done, but it is a difficult process that requires testimony and other evidence to prove that the will existed and was not destroyed by the testator in order to revoke the will.
Ohio probate attorneys almost always recommend that executors have an attorney assist them when attempting to get a will accepted by a court when it has been lost, spoiled or destroyed. An experienced probate attorney can help an executor in obtaining the evidence and testimony needed to prove a spoiled, lost or destroyed will in court.
Spoiled, Lost or Destroyed Wills: What You Need to Prove
An Ohio probate court must admit a damaged or missing will to probate if the following two conditions are met:
- The proponent of the will can establish by clear and convincing evidence that the will was executed with the formalities required by law under the jurisdiction where it was executed at the time it was executed
- The proponent of the will can establish by clear and convincing evidence what was included in the will
- No one who opposes the will can establish by a preponderance of the evidence that the testator had revoked the will
As you can imagine, proving that a will was properly executed and proving what was instructed in the will can be very difficult in the case of a damaged or missing will, since the actual will cannot be referenced. In such cases, Ohio probate attorneys usually rely on testimony from individuals who witnessed the execution of the will or had cause to read the will prior to its destruction or disappearance. Evidence, such as copies of the will or communication between the testator and his or her beneficiaries regarding the instructions of the will, may also be submitted to the Ohio probate court overseeing the case.
It used to be the case in Ohio that a will which could not be found after the testator’s death was assumed to have been destroyed by the testator as a way of revoking the will. That is no longer the case. Now, when someone seeks to have a lost or destroyed will admitted to probate court, the person or people seeking to probate the will must notify all interested parties, including:
- The testator’s surviving spouse
- Anyone who would have been a beneficiary if the testator had died intestate (with no will) under Ohio law
- All beneficiaries and devisees named in the will
- Any beneficiaries and devisees who may have been named in the most recent will prior to the spoiled, lost or destroyed will.
Anyone required to be notified may oppose admission of the will and must present their own testimony and evidence to prove that the will did not exist, was not executed properly, or was destroyed by the testator with the intent to revoke the will.
In Dayton, Ohio, the probate attorney’s office of Gudorf Law Group, LLC, can assist in proving a lost or destroyed will in an Ohio probate court. Call our office at 1-877-483-6730 to schedule a free consultation.