Next Steps: Was the will stolen — or revoked?

Q: I am one of three children. When my mother prepared her will three years ago, she sent each of us a copy of her will with a handwritten note explaining that her original will would be found in the family Bible in her bedroom on her dresser. In that will, she divided her estate into four equal shares — one for me and each of my siblings, and one for my oldest daughter, who had always been her favorite grandchild. She named me as her personal representative to handle her estate. I had nothing to do with her decisions, and she had gone to her longtime family lawyer by herself.

While I appreciate my mother being up front with everyone, which was her style, the fact that she named me — the youngest — as her representative and gave my daughter a child’s share did not sit well with my siblings, who have said little to me since then.

When Mom died earlier this year, I went to her home to get the original will from her Bible (she had showed it to me before), but it was nowhere to be found. I did find a copy of her will with a copy of the letter she had sent each of us. I searched high and low for the original, and could not find it. I went to her lawyer, who had a receipt signed by my mother acknowledging she had taken the original with her. He told me that she was perfectly satisfied with the will as written and had not come back to his office to change it. He was the only lawyer she and my father ever used.

I went to my brother and sister and asked if they would agree to the copy being filed with the court, but they both refused. I have seen a lawyer, who told me that it would be next to impossible to use the copy under the circumstances. While I don’t like to think that my brother or sister removed the original to gain a larger share, I can’t imagine any other scenario. Is there any way I can carry out my mother’s wishes?

A: While the precise answer to your question depends on the law of your state, with most situations where a last will and testament is retained by the person signing it (here, your mother), and cannot be found at death, it’s presumed that the will was destroyed by the signatory (called a “testatrix” if a female, and “testator” if a male). However, this presumption can be rebutted by contrary evidence, but the burden would be on you as the proponent of the will to prove the will had not been revoked.

Some of the factors that may be considered include statements from your mother that she did not intend to revoke the will, evidence that until her death, she maintained a loving attitude toward your granddaughter, and evidence that others had access to the will before your mother’s death. While you believe that one of your siblings may have destroyed or removed your mother’s will to gain a financial advantage, there is no legal presumption this happened — even though the motive was present.

Because folks generally don’t keep a logbook or diary of when family members come to visit, we believe that despite what appears to be a clear motive to cut out your daughter, your battle will be uphill and expensive. Everyone knew where the will was located, and there are other possibilities that we don’t believe will allow you to overcome the presumption of revocation. For example, your mother may have taken it from the Bible, forgot to put it back, and it was thrown out with the trash.

While it may be inconceivable to some that this kind of thing goes on, there are protections that can and should be put in place: (1) Tell only your personal representative where your will is located. If in a safe deposit box, consider placing the name of your personal representative on the signature card and giving him or her a key, assuming little else is in the box; (2) Leave your original will with your lawyer and have him or her put it in his/her safe, but be sure to get a receipt. The drawback here is that your lawyer may die or retire or you may forget where you left your will; (3) Sign two or three duplicate original wills so that you can retain one, your lawyer can keep one, and you can give an original to your personal representative; and (4) make a decision as to whether you want to start the family feud before you die or afterward if you leave your estate other than equally to your children. Sometimes, as in the case here, being forthright and up front may not be the safest policy.

Jan Warner is a member of the National Academy of Elder Law Attorneys and has been practicing law for more than 30 years. Jan Collins is editor of the Business and Economic Review published by the University of South Carolina and a special correspondent for The Economist. You can learn more information about elder care law and write to the authors on http://www.nextsteps.net