Losing the original Last Will and Testament of a loved one can be stressful, but there are steps you can take. If you have a copy of the Will, you may be able to admit it to probate, but this process presents unique challenges in Tennessee.
Was the Will Revoked or Destroyed?
If the original will cannot be found in Tennessee, the testator (the person who created the Will) is presumed to have either revoked or destroyed it. This makes admitting a copy of the Will into probate much more complex. We must prove that the Will was valid and that the decedent didn’t intentionally revoke it.
Proving the Validity of a Copy
Several steps are involved in admitting a copy of a Will.
First, we need to establish that:
- The decedent created a Last Will and Testament.
- The decedent is now deceased.
- The contents of the copy of the Will would have been valid under Tennessee law.
This can be challenging because the original Will carries the signatures of the witnesses and the notary public. To prove that a copy is a valid substitute, we may need to track down those original witnesses and notary to obtain affidavits confirming their recollection of the Will’s execution.
The Search for the Original Will
In addition to proving the validity of the copy, you must also show that you’ve done a diligent search for the original Will. Courts require evidence that every reasonable effort has been made to locate the original document.
The High Legal Standard: Clear and Convincing Evidence
The most difficult part of admitting a copy of a Will is proving that the decedent did not revoke or destroy the original. This requires “clear and convincing evidence,” a high legal standard. Without this proof, the court may assume that the Will was intentionally revoked, and the estate could be distributed according to intestate succession laws, which might not reflect the decedent’s true wishes.
The Importance of Retaining the Original Will
The best way to avoid these complications is to keep the original Last Will and Testament in a secure place. Make sure that your loved ones, particularly the personal representative named in the Will, know where to find it. This will save time, reduce expenses, and simplify the probate process for everyone involved.
