Detailed Answer
When the original will cannot be found or has been physically destroyed, Maine probate law provides ways to determine whether the will still controls distribution of the decedent’s property. Courts focus on two main questions: (1) did the testator intentionally revoke the will by destroying it, and (2) if the will was lost or destroyed without the testator’s intent to revoke, can the will’s contents be proved so the estate can be administered under its terms?
Presumption of Revocation by Physical Act
If the original will is missing or torn, Maine courts start with a presumption that the testator revoked the will if the will was last in the testator’s possession and cannot now be found. That presumption can be rebutted with evidence showing the testator did not intend to revoke the will. Examples of rebutting evidence include credible witness testimony that the testator kept the will in a specific place where it is unlikely to be lost, a conflicting later will or express statements by the testator showing intent not to revoke, or proof that a third party removed or destroyed the will without the testator’s intent.
Admitting a Lost or Destroyed Will to Probate
If the will has been lost or destroyed but the proponent (usually a named executor or an interested person) can prove it was executed and not revoked, Maine probate courts may admit a copy or secondary evidence of the will’s contents. To do this the proponent typically must:
- File a petition in the probate court in the county where the decedent lived asking the court to admit the lost will or to establish its terms;
- Offer credible proof the will was validly executed (for example, affidavits from the attesting witnesses or other witnesses who recall the execution); and
- Provide clear and convincing evidence of the will’s contents (a copy of the will, witness testimony about the will’s provisions, drafts, or other documentary evidence).
In practice, courts expect persuasive evidence not only that the document existed and was a valid will, but also that the absence of the original did not result from an intentional revocation by the testator. If the court is satisfied that the will was valid and not revoked, it can admit a copy or accept testimony about the will and order distribution according to the proved terms.
When the Will Was Destroyed by the Testator
If the testator themselves destroyed the will with the intent to revoke it, the revocation is effective. Evidence of destruction accompanied by clear intent to revoke will usually mean the will is invalid. If a later valid will exists, that later instrument governs. If no valid will survives or can be established, the estate may pass under the rules of intestacy.
Practical Consequences
- If the court admits a copy of the lost will, distribution typically follows the copy (subject to proof the copy accurately reflects the original).
- If the court finds revocation, the estate is distributed according to any later valid will or, absent one, under Maine intestacy rules.
- Contested cases frequently lead to hearings where witnesses and documentary proof are evaluated. These conflicts can increase cost and delay estate administration.
Where the Law Lives in Maine
The rules that apply come from Maine’s probate statutes and court practice governing wills and probate administration. For the statutory framework, see Maine Revised Statutes, Title 18-B (Estates and Protected Persons), Part 3 (wills and probate procedure): https://legislature.maine.gov/statutes/18-B/title18-Bindex.html. For practical probate forms and local court procedures you can also consult the Maine Judicial Branch probate pages: https://www.courts.maine.gov/courts/probate/.
Typical Court Process (step-by-step)
- Search thoroughly for the original will: safe, safety deposit, attorney’s files, home, bank, or with named executor.
- If missing, the proponent files a petition to admit a copy or to establish the will’s terms in the probate court where the decedent resided.
- Provide affidavits or testimony from attesting witnesses or other witnesses who recall the will’s execution and content.
- Provide any available copy of the will, drafts, emails, or other documentary evidence describing the will’s terms.
- The court reviews evidence, holds a hearing if contested, and decides whether to admit the will or to treat the estate as intestate.
Example Hypothetical (illustrative)
Suppose Jane kept her signed will in a red folder at home. After Jane’s death, family members cannot find the folder. A credible copy of the will exists in Jane’s attorney’s files; two witnesses remember signing the will. The family claims Jane must have destroyed the document. In court, the proponent files to admit the attorney’s copy and submits witness affidavits that Jane never said she intended to revoke it and testimony that the folder was often moved by a housecleaner. The probate court weighs the evidence on revocation and contents and may admit the copy if it finds the will was not revoked.
Note: The example is illustrative only; outcomes depend on the specific facts and evidence in each case.
Disclaimer
This article explains general Maine probate principles and is not legal advice. It does not create an attorney-client relationship. For advice about a particular situation or to start a probate proceeding, consult a licensed Maine probate attorney.
Helpful Hints
- Act quickly. Locate and secure any copies, drafts, emails, or notes that describe the will’s provisions.
- Talk to the attorney who prepared the will—attorneys often keep copies or estate files.
- Identify and preserve contact information for attesting witnesses; their affidavits are often critical.
- Collect circumstantial evidence about where the original was kept and who had access; this helps rebut a presumption of revocation.
- If the will was in a safe-deposit box, ask the bank about procedures and whether the box was accessed after the testator’s death.
- Consider bringing the matter to probate court early. Waiting can complicate evidence and witness memories.
- If the estate is substantial or likely to be contested, consult a probate lawyer experienced in lost-or-destroyed will matters.
- Keep records of all communications, photographs of the decedent’s documents or storage locations, and copies of any relevant correspondence.