Kansas: What Happens If the Original Will Is Lost or Damaged in the Mail?

Short answer: If the original will is lost or damaged in the mail before it reaches the probate court, Kansas law allows the court to admit secondary evidence (for example, a copy plus witness testimony) to prove the will’s contents and that the decedent did not revoke it. The person asking the court to admit a copy will usually need to file a petition and present proof about how the original was lost or destroyed and about the will’s authenticity.

How Kansas law governs lost or damaged wills

The Kansas Probate Code (K.S.A. Chapter 59) sets the framework for admitting wills to probate and for proving wills when the original document cannot be produced. The probate court’s principal concerns are:

• Whether the document was a validly executed will when the testator signed it;
• Whether the testator revoked the will before death; and
• Whether the copy or other evidence accurately reflects the contents of the original will.

See the Kansas Probate Code for the statutes that govern will admission and probate procedures: K.S.A. Chapter 59 (Probate Code).

Typical court approach when the original is lost in the mail

When an original will is lost or damaged in the mail on its way to the courthouse, courts typically follow these steps:

1. Require a petition to admit the will (or a copy) to probate. The petitioner (often the nominated executor or a beneficiary) explains the facts surrounding loss or damage and asks the court to admit a copy or to accept secondary proof of the will’s terms.
2. Require proof that the original was properly executed and not revoked. That proof can include testimony from the will’s attesting witnesses, declarations from the attorney or sender, notarized copies, drafts, or other documentary evidence.
3. Consider evidence about how the original went missing. Evidence that the original was mailed (tracking, certified-mail receipts, affidavits about handing the will to postal service or courier) helps show nonproduction resulted from loss in transit rather than an intentional destruction by the testator.
4. Decide whether to admit a copy into probate. If the court is satisfied by the evidence, it can admit a copy and treat it as the will for probate purposes. Interested parties may object and contest the admission.

Evidence courts find persuasive

Useful evidence includes:

• Testimony from the two attesting witnesses who signed the will, attesting that they witnessed a valid signing;
• Attorney or notary testimony saying the original existed, was properly executed, and was mailed or delivered to the court;
• A clear, dated copy of the will (typed copy, scanned PDF, or counterparts);
• Mailing/courier records (tracking numbers, certified-mail receipts, delivery attempts, postal affidavits);
• Drafts, estate-planning emails, or other documents that confirm the will’s terms and the testator’s intent; and
• Affidavits explaining why the original cannot be located (for example, affidavits from the attorney and the sender describing the mailing and subsequent loss).

Who has the burden of proof?

The person seeking admission of a copy bears the burden to prove the will’s validity and that the original is not produced because of loss or some other external cause. The court will evaluate the evidence and may require contemporaneous witnesses to testify under oath. If an interested party contests the admission, the court will hear opposing evidence before deciding.

Potential outcomes

• The court admits a copy as the testator’s last will and appoints the nominated executor;
• The court declines to admit the copy if the evidence is insufficient, in which case intestacy rules may apply; or
• The court admits the copy but reserves certain issues for later contest or supervision (for example, ordering additional proof or placing assets under temporary control until disputes resolve).

Practical deadlines and contests

Kansas law places time limits on contests and on initiating probate procedures. Interested parties must monitor the probate filings and appear promptly if they intend to object. The probate clerk can explain local filing requirements and timelines under K.S.A. Chapter 59. If you miss a statutory deadline to contest a probate action, you can lose certain rights to challenge the will’s admission.

When loss or damage suggests possible foul play

If the original will disappeared under suspicious circumstances, or if someone had motive and opportunity to destroy it, the court will weigh that evidence carefully. Suspicious loss may increase the chance the court will require stronger proof before admitting a copy.

What you should do right now

1. Stop further mailings. If you are responsible for sending an original will, switch to methods that provide proof of delivery (for example, hand-deliver or use a secure filing method at the probate clerk’s office).
2. Contact the probate clerk for filing instructions. The clerk can explain how to file a petition to admit a copy and what local forms or fees apply.
3. Gather evidence: copies of the will, drafts, attorney or notary files, certified-mail receipts, tracking records, and contact information for attesting witnesses and the sender.
4. Prepare witness affidavits. Written sworn statements from the witnesses and attorney help establish the will’s execution and the circumstances of loss.
5. File a petition promptly. The petition typically describes the loss, attaches the copy, and requests admission of the will’s terms to probate.

When to consult an attorney

Because proving a lost will can involve complex evidentiary questions and potential contests from heirs, consult a probate attorney if the estate has significant assets or if heirs are likely to dispute the will. An attorney can prepare the petition, gather and present proof, and represent you in objections or hearings.

Helpful Hints

• Keep multiple dated copies of the signed will in secure locations (attorney file, safe deposit box, personal safe). Copies help if the original is lost.
• Use certified mail or tracked courier services when sending original estate documents and retain receipts and tracking logs.
• Ask your attorney to keep the original will in their custody and to file it directly with the probate court to reduce risk of loss during mailing.
• If a will is mailed, obtain and preserve postal/courier documentation showing the chain of custody.
• If the original cannot be found, start the probate filing process right away so you do not miss local deadlines or create grounds for an adverse presumption.
• Do not destroy or alter any drafts or copies; doing so can create suspicion about revocation or tampering.
• Contact the postal service or courier promptly to obtain affidavits or records about lost shipments.

Disclaimer: This article explains general principles of Kansas probate procedure and is provided for educational purposes only. It does not constitute legal advice, create an attorney-client relationship, or replace consultation with a licensed Kansas attorney. For advice specific to your situation, contact a qualified probate attorney.