Sometimes all is not lost when the Will is lost. The Code of Virginia only allows an original document meeting other statutory requirements to be probated but more and more Virginia Circuit Courts are allowing a copy of a Will to be probated if the presenter can prove that the actual original Will was not in the testator's possession. If a bank, trust company or perhaps another professional such as an attorney or accountant, is in possession of a testator's Will, and the Will is not able to be located, there arises a presumption of lost Will and a photocopy of the Will may be probated. Family members who would inherit under intestacy, but who would not inherit under the Will, may make claims that the testator purposefully revoked the Will during his or her lifetime, however, they will have to establish their position with clear and convincing evidence.
In the recent Virginia Circuit Court case of In Re. Estate of Elbert Brown (87 Va. Cir. 353 (2013)), the Court ordered the admission of a photocopy of a Will to probate when the original Will had been lost by a corporate fiduciary.
The testator had signed his Will and a living Trust instrument on the same date in 1992. The Trust was administered by a corporate fiduciary from inception. After the testator died, the original Will could not be located. The drafting attorneys indicated that their records showed that the original Will and Trust documents were sent to an officer of the corporate fiduciary after execution.
The corporate fiduciary provided an affidavit indicating that it had administered the Trust since 1992, had contact with the testator since 1992 and had never received any indication from the testator that he wished to revoke his Will or any other portion of his estate plan.
Some of the testator's assets already were titled in the name of the Trust prior to his death, however, the probate estate was valued at approximately $400,000.00. If the copy of the Will was probated, the probate estate would pass to the Trust and be distributed to the Trust's beneficiaries. If the copy of the Will was denied probate, the probate estate would pass by intestacy to the testator's heirs at law, who were a different collection of individuals.
The established rule in Virginia is that if an executed Will is in a testator's possession or custody prior to death, but it cannot be located after his or her death, there is a presumption that the testator destroyed it with the intent to revoke. This presumption only can be rebutted by clear and convincing evidence that the Will was lost and not revoked by the testator.
The Court in Brown found that the testator was not in possession of the Will and instead, that the corporate fiduciary was in possession of the Will. Accordingly, the presumption that arises is that the Will was lost. In order to rebut this presumption, those claiming the Will was revoked must prove the revocation by clear and convincing evidence.
In an increasingly digital world, all of us, especially professionals, are relying more and more on electronic copies of documents and less and less on the paper originals. By ruling to admit the photocopy of the Will to probate, the Brown decision is consistent with this shift.
The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2026.
