The Original Will Is Missing. Does That Mean It Was Revoked?
A family knows a will was signed, and the attorney still has a copy. After the person dies, nobody can find the original. Does the copy control, or must the estate be treated as though there were no will?
The answer is not automatic. In re Estate of Speck, No. 17-0467 (Iowa Ct. App. Aug. 15, 2018), illustrates the dispute that can follow.
What happened in Speck?
Donald Speck signed a will leaving the residue to one son and his then son-in-law, Mark Fargo, while expressly disinheriting four other children. The attorney kept a copy and gave Speck the original.
After Speck died, the original could not be located. Fargo petitioned to probate the lost will. The children opposed the petition, arguing that the presumption of revocation had not been overcome.
What did the courts decide?
The trial court admitted the will, and the Iowa Court of Appeals affirmed. The appellate court found substantial evidence supporting the conclusion that the presumption had been rebutted. It also rejected the argument that the trial court improperly shifted the burden.
The decision considered the evidence as a whole, including statements, family relationships, and circumstances surrounding access to the documents. It did not establish that having a photocopy always solves the problem.
How does revocation fit into the issue?
Iowa Code section 633.284 addresses revocation through destruction or cancellation with the required intent, or through a subsequent will. The section also addresses the formalities for cancellation and revival.
For a missing document, the difficulty is determining what happened and what the person intended. That is different from deciding whether the original will was properly signed in the first place. Section 633.279 addresses the execution requirements for an Iowa will.
What can families do with this information?
Keep the original in an appropriate place and make sure the person who will need it knows how to locate it. A note identifying the attorney and the location can be useful without disclosing every gift to the family.
If a will is missing after death, preserve copies and document the search. Avoid assuming that someone destroyed it simply because the distribution is disputed. An attorney can evaluate the available evidence and the procedure for presenting it.
What stands out in Speck is how a storage problem became a dispute about intent. The signing process matters, but so does the ability to locate and explain the document when it is needed.
Tyler ThompsonAuthor