Court Decides on Probating a Copy of a Will

The Supreme Court of Virginia recently ruled on a case involving the question of whether a copy of a will passed muster for probate. Typically, the law provides that the original will must be submitted in order to probate an estate, but exceptions to the rule do exist. The case highlights the importance of keeping an original will as well as what must be proven in order to have a copy allowed for probate.

Facts of the Case

In the case of Edmonds v. Edmonds, et al, James Edmonds passed away in 2013 and left behind his wife, Elizabeth Edmonds, daughter Kelly, and Christopher, a son from a previous relationship. It is undisputed that in 2002, Mr. Edmonds executed a will that left all of his personal property to his wife and the remainder to a revocable living trust. The will stated that if Elizabeth passed away first, the property would go to Kelly and specifically stated that Christopher was omitted from the estate.

At the same time, Elizabeth filed her own will that was a mirror image of James’ will, providing that if he would inherit her personal property unless he predeceased her, then it would all go to Kelly. After his death, Mr. Edmond’s original will could not be found but a copy was found in a binder in his filing cabinet.

Mrs. Edmonds filed a complaint with the court and asked that the photocopy of the will be allowed to probate. Christopher countersued and claimed that his father died intestate, thereby making him an heir to the estate. He claimed that his father must have destroyed the original will with the intent to revoke it. Kelly also responded and sided with her mother, stating that there was no evidence of Mr. Edmonds’ intention to destroy the original will.

At trial, multiple witnesses testified that there was no evidence of any intention to destroy the original will. Furthermore, previous versions of the will explicitly excluded Christopher from the estate. Christopher himself testified that he had never even spoken to Mr. Edmonds or met him prior to his death. The trial court ruled that Mrs. Edmonds proved by clear and convincing evidence that James had not destroyed the will with an intention to revoke it. As a result, the copy of the will was allowed into probate. Christopher appealed the decision to the Virginia Supreme Court.

Ruling of the Court

The Virginia Supreme Court agreed with the trial court’s decision that James had not destroyed his original will with the intent of revoking it and allowed a copy of the original will into probate. First, the judges looked to the state law regarding missing wills, noting that “where an executed will . . . cannot be found after his death there is a presumption that it was destroyed by the testator . . . this presumption may be rebutted . . . by clear and convincing evidence.”

The judges ruled that Elizabeth did not need to show some other cause for the disappearance of the will. They ruled that it was clear from the transcript of the trial and the final order that the proper legal standard was applied to this case. Furthermore, Mrs. Edmonds had proved in the trial by clear and convincing evidence that her late husband had no intention of destroying the will to revoke it.

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