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What Happens in Tennessee if the Original of a Will is Lost?

Here is a scenario which happens sometimes with Tennessee wills:  A person gives a copy, not the original, of his or her Will to someone else for safekeeping.  Several years later, the person passes away.  No one can find the original of the Will.  If the copy of the Will is not valid, then it will change who inherits the assets, so whether the copy is valid or not is an important matter.

Can the Will be valid based on the copy?  It might be: It might not be. It all depends on the particular facts involved.

Here is what you have to prove in order to establish that a copy of a Will is valid: (1) that the testator made and executed the Will, and that it otherwise meets the requirements of a valid Will; (2) that the testator has died; (3) the substance and contents of the Will; (4) that there has been a diligent search for the original of the Will; and (5) that the testator did not revoke the Will. Usually, particularly considering the presumption discussed below, the difficulty will come in proving the last item, (5).

Under the law which governs Tennessee lost wills, there is a strong presumption that the person who made the Will destroyed it or revoked it if the original of the Will cannot be found.  That presumption can, and has been, overcome in Tennessee probate cases.  To overcome it, you have to present clear and convincing proof to the contrary, but you do not have to prove, to an absolute certainty, that the Will was not revoked.

In attempting to establish that the testator did not revoke the Will, you can introduce hearsay evidence of statements which witnesses heard the testator make either before or after the Will was executed (so long as they have relevance to the issue of whether the testator did or did not revoke the Will).  So, for example, if, on his deathbed, the testator told several disinterested witnesses that he lost the original of the Will, but wanted it to be effective, my bet would be that the copy of the Will would be found to be valid.

In real life, the facts of probate cases involving lost wills are never as clear and straightforward as the above example.  For a recent opinion from the Court of Appeals of Tennessee in a lost will lawsuit, take a look at In re Estate of Oakley. It will give you a solid education on the parameters and nuances of the law related to lost will cases.  To boot, it is an interesting read (as appellate opinions go).

In the Oakley case, the trial judge held that the party trying to establish that a copy of the Will of the Decedent was valid had not carried her burden of proof that the Decedent had not revoked the Will.  The Court of Appeals of Tennessee reversed, and remanded the case for a new trial.

What evidence was there in the Oakley case that led the appeals court to conclude that the party offering the copy of the Will might well be able to rebut, at trial, the presumption that the testator did not intend to revoke his Will even though the original of it could not be found?  There was a whole lot of such evidence, and it is what makes this probate case opinion such an interesting case.

In the Oakley case, there was evidence that the testator’s wife and another person with a motive to destroy the original of the Will had access to the safe where the original was known to have been kept.  There was also evidence that the former wife and that other person had deleted important text messages for periods of time that related to the testator’s death, while such messages for other periods of time had not been deleted.  There were also a host of other suspicious circumstances and facts that eroded the credibility of the wife.