Wills Destroyed In Natural Disaster

When an original of a will cannot be located, the courts generally presume that the deceased person destroyed it to make it null and void. However, there are natural disasters and personal disasters that destroy original documents.

The law provides that the presumption that the person destroyed his will to revoke it can be rebutted by clear proof of three things. This clear proof must show that the person made a valid one, it must show proof of the contents or substance of the will and it must show that it was not revoked by the person. These three items must be proven by a person wishing to probate it.

A case which settled in 2009 was that of Mr. Day who had executed a will in December of 2004 in which he left everything to two of his three children. One child, a daughter, was not mentioned at all in it. With the storm, Katrina, his original one was destroyed.

Mr. Day passed in 2008. The two children mentioned in it presented a copy of their father’s 2004 document along with an affidavit from the attorney who had prepared and notarized it. The court allowed the copy to be probated and one child was appointed independent executor in accordance with the terms of the legal document. Shortly thereafter, the child who had been omitted filed a petition to annul the probated one.

Consequently, it was duty of the two other children to provide the clear proof mentioned above that showed that Mr. Day had made a valid one. They must also show proof of the contents or substance, and they must show that it was not revoked intentionally by Mr. Day.

At the trial, Mr. Day’s attorney testified that he prepared the 2004 document and that Mr. Day signed it in his presence. The attorney presented a copy of the same. Thus the first 2 requirements were met. The court found that the third requirement was satisfied as the overwhelming evidence of the case clearly and convincingly established that the decedent did not destroy it with the intention to revoke it, but rather, the original one was destroyed along with the majority of Mr. Day’s other possessions in Hurricane Katrina. Even though the exact circumstances of how Mr. Day’s document came to be lost or destroyed are unknown, the court found the evidence clear and convincing that he did not revoke it with the intention of having the third child inherit from his estate. Thus the third child lost in court.

In conclusion, when an original one is destroyed by either a natural disaster such as Katrina or a personal disaster such as a house fire, it should be replaced with a new original as soon as possible. As you can see from the case discussed above, the attorney’s copy maintained in his file played a vital role in Mr. Day’s last wishes being carried out.

It is important to have a seasoned professional assist you in your estate planning, and it’s important that a copy of it and powers of attorney be maintained in a safe location. The four basic documents everyone should have are a Will, General Procuration, A Special Limited Medical Power of Attorney and a Living Declaration.