Quick answer

In Delaware you can ask the Register of Wills or the court to admit a copy of a will when the original is missing, but you must present clear evidence that the original existed, was properly executed, and was not intentionally revoked by the testator. Courts will typically require testimony, affidavits, or other proof showing why the original is not produced and why the copy is reliable. Because a missing original can raise a presumption of revocation, you must rebut that presumption with sufficient evidence.

Consult the Delaware Decedents’ Estates statutes for general guidance: see Delaware Code, Title 12 (Decedents’ Estates): https://delcode.delaware.gov/title12/. For local filing procedures contact the county Register of Wills: https://courts.delaware.gov/registers/.

Why a missing original may be treated as revoked

Court practice in Delaware, as in many jurisdictions, often starts from the common-sense concern that a testator who had the original will in personal control and then failed to produce it at death may have destroyed or revoked it. If the original cannot be found among the decedent’s papers, the court may infer revocation. To avoid that presumption, whoever offers the copy must present evidence explaining the absence and proving the copy accurately reflects the testator’s last will.

Typical legal standards you must meet

• Proof that the copy is a true and complete copy of the original will.
• Evidence that the will was executed according to Delaware formalities (signatures, witnesses, notarization if applicable).
• A satisfactory explanation for why the original cannot be produced (lost, destroyed by accident, or in the possession of someone who will not deliver it).
• Rebuttal of any presumption of revocation — often with witness testimony that the testator did not revoke the will and that the original was not in the decedent’s possession at the time of death.

Practical steps to probate a copy of a will in Delaware

1. Search thoroughly for the original. Check the decedent’s home, safe deposit boxes, attorney files, banks, and other likely locations. Document the searches you make.
2. Collect documentary evidence. Gather the best available copy of the will (photocopy, scan, attorney file copy). Collect related documents: drafts, correspondence, or a memo showing the will’s existence.
3. Obtain affidavits. Get sworn statements from people who can attest that they saw the original will and that it was executed properly (for example, the attesting witnesses or the drafting attorney). Affidavits explaining how the original was lost are particularly useful.
4. Identify and contact subscribing witnesses. If any attesting witnesses are alive, their testimony or affidavit about witnessing the signature and the testator’s capacity carries strong weight.
5. File a petition with the Register of Wills or the Court of Chancery (depending on the county and circumstances). Provide the copy, the affidavits, and a petition asking for admission to probate. Follow local filing rules; the Register of Wills in Delaware handles many probate matters—see https://courts.delaware.gov/registers/.
6. Give notice to interested parties. Delaware practice requires notice to heirs, beneficiaries, and creditors. Proper notice gives parties a chance to object if they believe the will was revoked or is invalid.
7. Be prepared for evidentiary hearings. If a presumption of revocation arises or an heir objects, the court may hold a hearing. Present witnesses, affidavits, and other evidence to show the copy is genuine and the original was lost or destroyed without revocation.
8. Consider alternatives. If proving the copy will is impractical, consider informal settlement among heirs or a declaratory judgment action to determine intestacy or rights under an earlier will.

Evidence that helps rebut a presumption of revocation

• Affidavits from attesting witnesses confirming proper execution and that the testator did not revoke the will.
• An affidavit from the drafting attorney stating that the attorney reviewed the original will and describing its terms.
• Documentary traces: photocopies of the original, earlier drafts, email communications about the will, or the attorney’s file reflecting the final will.
• Evidence that the original was lost through circumstances beyond anyone’s control (e.g., theft, misplacement by a custodian, accidental destruction), supported by sworn statements.
• Testimony showing the original was last seen by someone other than the decedent (for example, by a third party who later lost it), which helps rebut a presumption that the testator himself destroyed it.

Common pitfalls and how to avoid them

• Don’t wait too long. The sooner you begin searching and collecting affidavits, the easier it is to locate witnesses and preserve reliable testimony.
• Document searches. Keep a written log of every place you look and whom you contact. That record proves you acted diligently.
• Get attesting witnesses on the record quickly. Witness memory fades; early affidavits or deposition testimony are stronger than delayed recollections.
• Avoid informal agreements that conflict with the copy. If heirs reach private deals, document them in writing so they don’t create additional disputes at probate.
• Don’t assume the Register will admit a copy without proof. Be prepared to provide the evidence listed above and to proceed to a hearing if necessary.

When to get an attorney

If the original will cannot be found, or if heirs or creditors object, an attorney experienced in Delaware probate can help assemble evidence, prepare affidavits, file the proper petition, and represent you at hearings. Probate of a copy often involves contested factual issues and legal argument about revocation, so legal help is frequently advisable.

Helpful hints

• Start by checking the Register of Wills for the county where the decedent lived: https://courts.delaware.gov/registers/.
• Preserve any electronic copies and metadata (file dates) for the copy of the will; metadata can support authenticity.
• Obtain certified copies of related court or bank records if they refer to the will’s existence.
• If a will was in a safe deposit box, get the box records and statements from the bank about who had access.
• Keep communication records—emails or letters—that confirm the testator’s intention or reference the will.