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Land of the Lost: Why an Original Bay Area Will is a Must in Probate Court

Nowadays you rarely need an original document in court, most of the time a copy will do just fine. But not so for Wills. Original Wills must be lodged (meaning filed) with the court, so that the court and all the parties can determine if the Will is valid. Of course, the person who signed the Will is no longer able to authenticate their own signature once the Will is needed, so an original Will is more important than other documents where the signer is usually still alive.

In California, a presumption arises where a person has possession of their own Will before death. If the original cannot be found, the law presumes that is was destroyed with the INTENT to revoke it. Imagine that. It certainly is possible that a Will could just be misplaced or lost with no intent to revoke it whatsoever. But the law presumes otherwise.

So if the original Will cannot be found and lodged with the Court, then the Will is considered revoked. But fear not, the Will still may be saved if you can overcome the presumption.

To make matters more confusing, there are different types of presumptions under the law. Some presumptions affect the burden of proof—meaning a party has the burden to prove something true to the satisfaction of the court. But there is a lower burden called the burden of production (or burden to produce evidence). Under this lower burden, a party need not prove the truth; rather, they merely need to provide some evidence of the contrary. Once that evidence is produced, the presumption is overcome.

For example, to overcome the presumption that a lost original Will is destroyed with the intent to revoke, all I need to do is show that it was not intended to be revoked when lost. So perhaps the original was with some papers that were known to be trashed. Or maybe the house caught fire and all papers were lost. The production of any evidence that would show a contrary intent is sufficient to overcome the presumption.

This may sound like a confusing or technical difference, but it makes a real difference when it comes to allowing the court to proceed with a copy of the Will rather than the original.

So make sure you keep your original Will safe so it can be used when needed. But if the original cannot be found, don’t give up hope. There is still a chance that a copy of the Will can be used if you can produce some evidence that is was not meant to be revoked.