Lost Will Creates Family Drama

September 6, 2018 | Kitt Tovar

Creating a will is an important step in ensuring your loved ones know where your possessions should go at the time of death. Another important consideration after making a will is how you will store it. Courts usually require that the original will be used at the time of probate. This means that if the original will cannot be found, the court will likely find that the decedent destroyed the will with the intent to revoke it. In a recent case, the Iowa Court of Appeals held that even though the original will could not be found, the proponent of the will had rebutted the presumption that the testator had intended to revoke the will.


Due to strained relations with his children after his divorce, a testator specifically disinherited four of his five children in a will he created in August 2012. The will named one son and a son-in-law (who was, at the time married to the testator's daughter) as the sole beneficiaries, with each receiving half of the estate. The son-in-law had known the family since childhood. The testator’s lawyer kept a copy of the will and the testator took the original home with him. The testator informed the son and son-in-law that he had written a will and that the contents of the will would anger the rest of the family. He asked them to keep the will a secret from the rest of the family, including their spouses. In September of 2015, the son-in-law was divorced from the testator's daughter. The relationship between the son-in-law and the testator, however, continued.

In December 2015, the testator suffered a stroke which was eventually fatal. Shortly thereafter, the son who was named in the will met with the lawyer and was shown a copy of the will. When the contents of the will were made known, two of the disinherited children asked the son-in-law to waive his rights under the will. He refused and the three disinherited children searched the house for the original. They were unable to locate the original will but did find a life insurance policy which left the entire $50,000 to one of the children not named in the will. The son-in-law asked the court to allow the copy of the will to be admitted to probate. All five children, including the son who was name as a 50 percent beneficiary in the lost will, objected.

Lost Will Presumption

Unless there is contrary evidence, a court will presume that a will which was in the possession of the testator but cannot be found at the time of death was purposefully destroyed and revoked. This presumption comes from the fact that the testator was the last person to have possession of the will and likely would have wanted it to be found. However, this presumption is not conclusive and may be rebutted with proper evidence.

To prove that a lost will should be probated, the proponent must establish four elements: 1) the proponent must show that the will was created and executed properly; 2) the proponent must show that the will had been lost and could not be found even after a diligent search; 3) the proponent must rebut the presumption that the will was destroyed by the decedent in order to revoke it; and, 4) the proponent must prove the contents of the will.

Court Proceedings

In this case, because the original copy of the will could not be found and the last known possession was with the testator, the son-in-law had to rebut the presumption that the will had been destroyed with the intent to revoke it. The disinherited children claimed the son-in-law was not able to rebut this presumption by clear, satisfactory, and convincing evidence. The trial court, however, ruled in favor of the son-in-law, admitting the will to probate.

The five children appealed. The Iowa Court of Appeals affirmed, finding that the district court’s conclusion that the son-in-law presented sufficient evidence to rebut the presumption of revocation was supported by substantial evidence in the record. Testimony established that the testator had not revoked the will as late as the Thanksgiving before the testator’s stroke on December 3. The court also found that there was no direct evidence that the testator had destroyed the will and that witnesses had testified that the testator told them--in the time leading up to his stroke—that he had thought about making changes to his will but had not yet done so. Additionally, the court noted that when the testator had destroyed a 2005 will, he had told his attorney about it. Even though several witnesses testified that the relationship between the testator and his children had improved and it was possible he wanted to include them in his will, the court found that there was no evidence he actually made those changes.  


Even though the son-in-law was able to use a copy of the original will in his favor in this case, it is unwise to count on that happening. Here, the son-in-law was able to rebut the presumption that the testator had intended to revoke the will, but courts have frequently found that lost wills cannot be probated. You should keep your will in a safe spot or with your attorney and let your executor and beneficiaries know where you have placed the will. It is also important to have an updated will so the court can honor your wishes.