Under the Tennessee law that governs lost wills, the overriding presumption is that the individual who created the will revoked it or destroyed it if the original will document cannot be found. It is possible to overcome this presumption in a Tennessee probate case.
However, in order to overcome it, it is necessary to provide persuasive evidence that counters the presumption. In an effort to prove that the testator did not revoke or destroy the will, you may provide hearsay evidence containing alleged statements that witnesses heard from the testator any time prior to or after the will was created and executed. The evidence provided must be directly relevant to the issue of whether the deceased testator revoked or discarded the will.
Home Crime, justice and law Courts, sentencing and tribunals. Form Form PA Report a will is lost to support a probate application. Report a will is lost to support a probate application PDF , Adrodd am ewyllys goll i gefnogi cais am brofiant PDF , Request an accessible format. If you use assistive technology such as a screen reader and need a version of this document in a more accessible format, please email hmctsforms justice. Please tell us what format you need.
It will help us if you say what assistive technology you use. This raised the presumption of revocation that she had destroyed the original intending to revoke it. Further, the Court found that evidence of the events which occurred subsequent to the deceased executing the original will did not reveal anything showing she had any reason to revoke it by destruction.
The Court concluded that the strength of the presumption was weakened to such an extent that it was overcome, and so rebutted. Probate of the will contained in the dated copy was granted to the executor. In Queensland the deceased attended the offices of the law firm who had prepared her will. It was duly executed in front of two witnesses. Some years later this firm merged with another law firm.
The will was kept in safe custody throughout. Before she died her attorney engaged a different firm to act on her behalf. He authorised for her documents held at the previous law firm, including her original will to be transferred to the new firm. Following her death an unsigned copy from this firm was used to commence the probate application as the original will could not be found, presumed lost.
Initially the Court requested further searches. This resulted in discovery of a photocopy of the executed and properly witnessed will found among personal papers of the deceased in an envelope identified as her last will. The contents of the executed copy will were found to be identical to the contents of the unsigned copy.
The probate application was amended attaching the executed copy will. The issues were whether the presumption of revocation applied or whether it was rebutted by the evidence, and whether the Court should grant probate over this copy will. The Court was satisfied on the evidence that when the deceased died, the original will was last in the custody of the last law firm and not in her possession.
Consequently the Court said the presumption of revocation did not apply. The absence of the original will was accounted for by its being lost by the last law firm, and that was sufficient to rebut the presumption, if it arose.
Accordingly probate of the copy will was granted. In Victoria a copy will was not admitted to probate. The original was last known to be in the possession of the deceased but not found after he died. The deceased had made a will in , a copy of which was found among his papers. Disclosure: While I am a lawyer, I am not offering legal advice. Stephen King practices law in Bellevue, WA. He writes short articles about estate planning to be informative and empowering.
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