General

Hidden or Lost Will

When you know you were named in a Will but the family has hidden the Last Will & Testament and won’t produce it?

First – It is a crime in Virginia to hide or destroy another person’s last will and testament!

§ 18.2-504. Destroying or concealing wills.

If any person fraudulently destroy or conceal any will or codicil, with intent to prevent the probate thereof, he shall be guilty of a Class 6 felony.

WHAT EVIDENCE DO YOU HAVE?

What law applies when original testamentary documents are missing?

When an executed will was known to be in the testator's custody but cannot be found after death.

PRESUMPTION: The testator intended to destroy the will!

First, if an executed will was known to be in the testator’s custody but cannot be found after death, there is a presumption that it was destroyed by the testator animo revocandi, that is with the intention to revoke. Under these circumstances, the proponents of a copy of the will must show by clear and convincing evidence that the will was simply lost and not revoked by the testator

When after the will was executed the will was not in the possession of the testator and not accessible to him/her.

PRESUMPTION: The will is lost and still valid!

Second, if the evidence shows that after execution the will was not in the possession of the testator and not accessible to her, then a presumption of loss arises. The presumption of loss must then be rebutted by clear and convincing evidence that the will was revoked by the testator.

Virginia Supreme Court:

The Virginia Supreme Court stated in Johnson v. Cauley, 262 Va. 40, 43-44, 546 S.E.2d 681, 683 (2001) “Under such circumstances, two different presumptions are available, depending on the last known location of the missing documents. First, if an executed will was known to be in the testator’s custody but cannot be found after death, there is a presumption that it was destroyed by the testator animo revocandi, that is with the intention to revoke. Under these circumstances, the proponents of a copy of the will must show by clear and convincing evidence that the will was simply lost and not revoked by the testator. Second, if the evidence shows that after execution the will was not in the possession of the testator and not accessible to her, then a presumption of loss arises. The presumption of loss must then be rebutted by clear and convincing evidence that the will was revoked by the testator. Harris v. Harris, 216 Va. 716, 719, 222 S.E.2d 543, 545 (1976);Ballard v. Cox, 191 Va. 654, 659-60, 62 S.E.2d 1, 3 (1950). Which presumption is applied in a specific case depends on the threshold factual determination of whether the will was in the possession of the testator at death and, if not, whether the testator nevertheless had access to it prior to death.”

Disclaimer
The materials are prepared for information purposes only.  The materials are not legal or medical advice.  You should not act upon the information without seeking the advice of an attorney.  Nothing herein creates an attorney-client relationship.  

Thomas H. Roberts & Associates, P.C.
105 S 1st Street
Richmond, Virginia 23219
(804) 783-2000