Lost or Destroyed Wills in Hawaii: What Happens and What to Do

Short answer: If a will cannot be found after the testator’s death, Hawaii courts will decide whether the will was revoked (for example, destroyed with intent to revoke) or whether a lost copy can be admitted to probate. The court will require evidence — often testimony from witnesses, copies or drafts of the will, or other documents — to determine the testator’s intent. This is a summary of typical Hawai‘i practice and is not legal advice.

Detailed answer — how Hawaii handles lost or destroyed wills

Hawaii’s probate laws (see Hawaii Revised Statutes, Chapter 560) govern how wills are executed, revoked, and admitted to probate. When an original will cannot be produced at the time a person dies, the probate court must decide two core issues:

1. Was the will validly executed (signed and witnessed) when it was created?
2. Did the testator revoke the will before death, either by a later valid will or by a deliberate act (for example, tearing or burning the original with intent to revoke)?

Key legal points you should understand:

• Presumption of revocation in some situations: If the decedent was known to have had the original will and the original is later missing and cannot be produced, some courts will infer that the disappearance indicates revocation — especially where the will was last seen in the decedent’s possession and then is not found after death. The strength of that presumption varies with the facts and with attendant evidence.
• Proof required to admit a copy: A copy (printout, photocopy, scanned or electronic copy, or a typed transcript) of a lost or destroyed will may be admitted if the proponent proves by sufficient evidence that the will was validly executed and that it was not revoked. Evidence can include testimony from the attesting witnesses, testimony of people who saw the testator sign the will or saw the original after signing, drafts and revisions that match the copy, and circumstantial evidence about the testator’s intent.
• Revocation by act: If there is reliable evidence that the testator intentionally destroyed the original will (for example, actually tearing it up or burning it) with the intent to revoke, the will is revoked. An accidental destruction (e.g., a document damaged by water without intent to revoke) will not necessarily revoke a will.

How the probate court typically resolves the issue

Procedural steps in a typical Hawai‘i probate case involving a lost or destroyed will:

1. Filing a petition with the probate court to admit a will to probate (often including a request to admit a copy or to declare the will revoked).
2. Serving interested persons and providing notice so heirs and potential beneficiaries can respond or contest.
3. Presenting evidence at a hearing: testimony from attesting witnesses (if available), the will’s drafter or witness, copies, drafts, correspondence, bank or safe-deposit records, and any other documentary or circumstantial evidence about the will’s location and condition before death.
4. The court weighs the evidence and decides whether the copy accurately reflects the original will and whether the will was revoked.

If the court admits a copy (or proves the contents of a lost will by sufficient evidence), the copy’s terms will generally control distribution. If the court determines that the will was revoked, the estate may pass by an earlier will (if one exists) or under intestacy rules.

Example (hypothetical)

Maria executed a signed, witnessed will and kept the original in a home safe. After Maria died, family members could not find the original, but they found a clear photocopy and two attesting witnesses who remembered signing and witnessing the will. Maria left notes indicating she planned no changes. Her family filed a petition asking the court to admit the photocopy. At the hearing, the witnesses confirmed the signing, and other evidence showed no intent to revoke. The court might admit the copy for probate.

Where to find the Hawai‘i statutes and forms

For the statutory framework, see Hawaii Revised Statutes, Chapter 560 (probate and estates):
https://www.capitol.hawaii.gov/hrscurrent/Vol8_Ch0501-0582/HRS0560/

For court procedures, filings, and probate forms, see the Hawaii State Judiciary’s probate/self-help resources:
https://www.courts.state.hi.us/self-help/probate

What to do right away if you discover a will is missing after a death

1. Stop searching randomly — preserve the decedent’s personal property and any potential evidence. Make a list of where important documents were usually kept.
2. Locate any copies, drafts, emails, or electronic files that contain the will’s text.
3. Identify and contact attesting witnesses right away while memories are fresh.
4. Collect other evidence of intent (notes, safe-deposit records, correspondence discussing changes to the will).
5. Contact a probate attorney promptly for help preparing and filing a petition with the probate court; contested matters can become time-consuming and emotional.

Potential outcomes

• The court admits a copy or other proof of the will and the estate is administered under its terms.
• The court finds the will was revoked; the estate is distributed under an earlier will (if there is one) or by intestacy rules.
• Parties settle: interested persons sometimes resolve disputes by agreement, avoiding prolonged litigation.

Helpful Hints

• Check every likely storage spot (safe, safe-deposit box, attorney’s file, home filing cabinet) and ask the decedent’s lawyer or banker about copies.
• Preserve electronic evidence: download any email or cloud-stored documents that could contain a copy or draft.
• Get signed affidavits from attesting witnesses describing the execution and any later conversations about revocation.
• Document chain-of-custody facts: when people last saw the original will and where it was kept.
• Act quickly on probate deadlines and notice requirements; delays can complicate admission of a lost will.
• If you are unsure whether a will was destroyed intentionally, treat the situation as legally sensitive and consult an attorney before disposing of any possible evidence.

Disclaimer: This article explains general Hawai‘i probate practice but is not legal advice. Laws and procedures change, and outcomes depend on the specific facts. Consult a licensed Hawai‘i probate attorney for advice tailored to your situation.