What Happens If I Can’t Find the Will?

Have you ever asked yourself “what happens if I can’t find the Will?” A recent Virginia Court of Appeals ruling discusses this question as well as the importance of keeping your estate planning documents safe. In the case of Glynn v. Kenney 2023 Va. App. LEXIS 176 (2023), the decedent’s home was a complete mess. Not only was the home described as if “a shredder had gone through the house and littered documents all over the home” but there was evidence of a rodent infestation and even bottles filled with apparent human waste. It was not a pretty situation.

In Glynn v. Kenney the deplorable condition of the home prevented an executor of an estate to locate the original last will and testament of the deceased owner of the home. The executor was only able to file a copy of the missing will with the Court.

Under Virginia law, filing a copy of a missing will can be problematic because family members can contest whether the copy truly reflected the intentions of the deceased person. Since in this case the filed copy of the missing will provided that the Plaintiff would be specifically disinherited, there is no surprise that the copy of the will was contested in Court.

In addition, Virginia law has some protections for Plaintiffs like the one in this case. If an original will that was in the deceased person’s custody cannot be found after their death, there is a presumption that the deceased person destroyed the will.

However, this presumption can be rebutted by clear and convincing evidence that the deceased person did not destroy the will with the intention of revoking it. While this is a very high standard to meet, both the trial court and the Virginia Court of Appeals found that it was met in this case. The Court gave the following reasons for rebutting the presumption:

1. The deceased person explicitly disinherited her sons, which indicated a clear desire that her estate not pass under the state intestacy laws.

2. The deceased person subscribed to a legal services plan with her estate planning lawyer that she used regularly to update her estate planning. Had she sought to revoke the will, she likely would have used this plan to make changes to her previous wills.

3. There was no evidence of anything that might have happened to change the deceased person’s mind about what she wanted the will to say.

4. My favorite: The condition of the deceased person’s messy home provided a plausible explanation for the will’s absence other than revocation! The Court found that the will “could have been destroyed by rodents, lost in the mass of documents, or taken by someone who had access to [the deceased person’s] home after her death.”

One could say that the moral of this case is that having a messy home can protect your estate plan! However, this case would never have taken place had the executor known where the original Will was located and had been able to find it in the deceased person’s home. The true moral of this case, therefore, is that you should communicate with your executors, agents, and trustees about where they can find your estate planning documents. You should store them in a secure place that they would be able to access in the event of an emergency. Don’t get to the point where you ever have to ask yourself “what happens if I cannot find the Will?”

If you have any questions about estate planning, we highly recommend talking to an experienced estate planning lawyer. We serve families living in Virginia, the District of Columbia, and Maryland. Call us today at 703-558-9311 to schedule your free consultation with us or click here to fill out our contact form and we will give you a call.