What to do if the original will is lost or damaged in the mail on its way to the courthouse

Short answer: Don’t assume the will is invalid. Under Delaware law a lost or destroyed original can still be admitted to probate if you can prove what the will said and that it was properly executed. There are practical steps to take right away and a legal procedure to follow to try to get the decedent’s wishes honored.

Detailed Answer — How Delaware law treats a lost or damaged original will

Delaware law allows courts to admit wills to probate even when the original physical document is missing or was destroyed, so long as the person trying to prove the will can establish the will’s contents and that the will was validly executed. The rules and procedures for proving a lost or destroyed will focus on two issues:

1. Proof of authenticity and execution. You must show that the will was legally executed — for example, that it was signed by the testator and witnessed according to Delaware requirements. If witnesses to the will are available, their testimony or sworn affidavits are often the strongest proof.
2. Proof the original is lost or destroyed and the copy is accurate. You should be prepared to explain how and when the original went missing (for example, lost in the mail) and present secondary evidence of the will’s terms, such as a certified copy, photocopy, an attorney’s file copy, digital copy, email attachments, or credible witness recollection about the document’s contents.

Courts look for convincing, credible evidence. Typical proof that may persuade a Delaware probate court includes:

• An attested copy of the will (e.g., a photocopy or scanned copy) kept by the attorney or testator.
• Affidavits from the witnesses who saw the testator sign the will or who can identify the signature and attest to proper execution.
• Evidence of mailing or delivery (tracking records, certified-mail return receipts, emails from the attorney or court acknowledging receipt, postal claims).
• Testimony that the original was not intentionally destroyed by the testator (because intentional destruction by the testator is generally treated as a revocation).

Delaware’s statutes and probate procedures dealing with wills and their admission are found in the Delaware Code, Title 12 — Wills and related probate provisions. For the statutory framework and probate rules, see Title 12, Chapter 3 (Wills): https://delcode.delaware.gov/title12/c003/index.html.

Common outcomes

• If you can present strong secondary evidence and witness testimony, the court may probate the copy as a valid will and appoint the nominated executor.
• If evidence is weak or contradictory, the court may refuse to admit the copy and the estate may be distributed under intestacy rules (the state’s default rules for distributing property when there is no proven will).
• If the court finds the original was intentionally destroyed by the testator with the intent to revoke, the will will be treated as revoked.

Practical immediate steps if the original was lost or damaged in the mail

1. Notify the register of wills or probate clerk where you mailed the will. Ask whether the court received anything and whether they have procedures for lost submissions.
2. Contact the postal carrier (USPS or private carrier) immediately and file a missing-mail claim. Get tracking numbers and claim reference numbers.
3. Search thoroughly for any copies — the decedent’s attorney’s file, home safe, email attachments, or cloud storage. Obtain certified or attested copies if available.
4. Identify and contact any attesting witnesses. Ask them to prepare sworn affidavits describing the will, the signing ceremony, and their knowledge of the testator’s signature and intent.
5. Gather corroborating evidence: drafts, emails discussing the will, final instructions to the attorney, bank or beneficiary communications, or any contemporaneous notes.
6. Preserve the chain of custody and records about the mailing: receipts, certified-mail return receipts, tracking history screenshots, and any communications with the post office.
7. Consult an attorney experienced in Delaware probate promptly. They can prepare the necessary petition and affidavits and represent your case before the court.

Typical court procedure to probate a lost will in Delaware

Although the exact process may vary by county and court office, the usual steps are:

1. File a petition to admit a lost or destroyed will accompanied by supporting affidavits, copies of the will (if any), and evidence of execution and loss.
2. Provide notice to interested parties (heirs, heirs-at-law, and named beneficiaries). Delaware courts require notice so interested persons can appear and contest the petition.
3. The court may schedule a hearing to evaluate the evidence. Witness testimony and documentary proof are presented at that hearing.
4. The court decides whether the evidence is sufficient to admit the copy or other secondary evidence as the decedent’s will. If admitted, the court issues letters testamentary or similar authority to the nominated executor.

When admission of a lost will is contested

Contests are common when family members or potential heirs dispute validity or allege that the decedent revoked the will. A successful contest might allege:

• The document was revoked (for example, torn or burned by the testator).
• The copy is a forged or inaccurate reflection of the original.
• The will was not properly executed or the testator lacked capacity or was subject to undue influence.

Because the burden of proof can be higher when the original is missing, litigation can become expensive and fact-intensive. That is why gathering strong documentary and witness evidence early is critical.

Helpful Hints

• Act quickly. Postal claims, witness memories, and locating copies are easier soon after the loss or death.
• Collect everything related to the will — drafts, emails, meeting notes, and billing records from the drafting attorney — these items strengthen proof of intent and content.
• Get witness affidavits rather than informal statements. Sworn affidavits are taken more seriously by courts.
• Keep thorough records of all communications with postal services and the courthouse (dates, names, claim numbers).
• If you are the person who mailed the will, preserve your own statement about how and when you mailed it and any tracking or mailing receipts.
• Consult a probate attorney in the county where the decedent lived before filing anything. An attorney will know local court practices, notice requirements, and the best way to present secondary evidence.
• Understand the difference between a lost will and a will intentionally destroyed by the testator: casual loss can often be remedied; intentional destruction is usually treated as revocation.

Where to find Delaware statutes and local probate information

Delaware Code — Title 12 (Wills) is a primary statutory resource: https://delcode.delaware.gov/title12/c003/index.html

County probate or register-of-wills offices have local filing rules — contact the register of wills or probate clerk in the county where the decedent lived for specific forms and deadlines.

Final note and disclaimer

This article explains general Delaware probate principles and practical steps if an original will is lost or damaged in the mail. It does not constitute legal advice. Laws and procedures change, and each case depends on its facts. Speak with a licensed Delaware probate attorney promptly to protect rights and present the strongest possible evidence to the court.