Detailed Answer

Short answer: Under Mississippi law, a lost or destroyed will can still be admitted to probate, but the person seeking probate must prove (1) that the document existed and was validly executed and (2) that the testator did not revoke it. The court will consider witness testimony, copies or drafts, and other evidence to reconstruct the will. If the proof is insufficient, the estate may be distributed under intestacy rules.

How Mississippi courts handle lost or destroyed wills

When a will cannot be located because it was lost, misplaced, accidentally destroyed, or intentionally destroyed by someone other than the testator, Mississippi probate courts follow established principles to decide whether to admit a non-original will into probate:

• Presumption of revocation when the testator had last possession: If the testator had the original will in their last known possession and it cannot be found after the testator’s death, courts often start with a presumption that the testator destroyed (and therefore revoked) it. The person hoping to probate the will must rebut that presumption by proving the will still reflects the testator’s intent and was not intentionally revoked.
• Proof of execution and contents: The proponent must show the will was validly executed according to Mississippi requirements (usually by the testator’s signature and appropriate witnesses) and must prove the will’s contents. Because the original is missing, testimony from the attesting witnesses or other credible witnesses, or reliable copies, is typically required.
• Reconstruction and secondary evidence: Courts accept secondary evidence—such as a clear photocopy, a typed draft, notes from an attorney, or witness testimony—that establishes the text and terms of the lost will. The more direct and consistent the evidence, the more likely the court will admit the document.

Burden and standard of proof

The person asking the court to admit a lost or destroyed will bears the burden to prove two things: that the will existed and was validly executed, and that it was not revoked. Mississippi courts generally require strong evidence—often described as clear and convincing—to admit a will when the original cannot be produced. That means the proof must be highly and substantially more probable to be true than not.

Common types of evidence courts accept

• Testimony of attesting witnesses: If one or both subscribing witnesses are available, their testimony about the will’s execution and contents is the strongest evidence.
• Copies or drafts: A complete and authenticated copy of the will (e.g., a photocopy, scanned file, or an attorney’s file copy) can be admitted if the court finds it reliable.
• Attorney or caretaker testimony: Lawyers, notaries, or caregivers who handled the will or saw the document can testify about its terms.
• Other circumstantial evidence: Emails, drafts, bank records showing beneficiaries, or consistent statements by the deceased about the will’s contents help establish the document’s existence and terms.

When destruction equals revocation

In Mississippi, a testator can revoke a will by intentionally destroying it with the intent to revoke. If evidence shows the testator tore, burned, or otherwise destroyed the will with the intent to revoke, the will is invalid. Accidental loss or destruction by someone else does not automatically revoke the will; the key question is the testator’s intent.

Possible outcomes in probate

• Will admitted as proved: If the court is satisfied by the evidence, it can admit the will to probate and the estate will be administered according to its terms.
• Will denied; intestacy: If the proponent cannot overcome the presumption of revocation or cannot reliably prove the will’s contents, the court may refuse to probate the will. The estate would then be distributed under Mississippi’s intestacy laws.
• Partial reconstruction: Sometimes courts will probate parts of a will that are clearly proved while denying other ambiguous provisions.

Where to look in the law: Mississippi statutes and court rules governing wills and probate are located in the Mississippi Code and the state’s probate procedural rules. For the text of Mississippi statutes and to search the code, see the Mississippi Legislature website: https://www.legislature.ms.gov/ (navigate to the Mississippi Code, Title 91 for statutes relating to wills and testamentary dispositions).

Practical steps to take if an original will is missing in Mississippi

1. Search thoroughly: Check the testator’s personal papers, safe deposit box, attorney files, and with family members. Document your search.
2. Locate copies and drafts: Find photocopies, scanned files, attorney drafts, or email exchanges that refer to the will’s provisions.
3. Identify witnesses: Track down the attesting witnesses, witnesses who knew the contents, or the attorney who prepared the will. Get signed affidavits if possible.
4. File a probate petition quickly: File with the appropriate county probate court and explain that the original is missing and why you believe it was not revoked.
5. Prepare to prove validity: Assemble witness statements, affidavits, copies, and other evidence that the will was properly executed and not revoked.
6. Consider hiring an attorney: A probate attorney can prepare a petition, collect proper affidavits, and present the evidence in court.

What happens if you can’t prove the will?

If the court concludes the will was revoked or cannot be proved, the estate will pass under Mississippi’s intestacy rules. That may produce outcomes substantially different from the lost will. That is why courts require solid proof before admitting a non‑original will.

Disclaimer: This article is for educational purposes only and is not legal advice. Laws change and each case is unique. Consult a licensed Mississippi probate attorney to discuss the specific facts of your situation and to get help filing the correct pleadings in the proper county probate court.

Helpful Hints

• Begin your search immediately; courts consider whether you made a reasonable attempt to find the original.
• Get written, signed affidavits from witnesses who recall the will’s execution or contents.
• Photocopies and electronic scans are valuable—bring originals of any non-original evidence you have.
• If the will was in a safe deposit box, check bank procedures for access at the testator’s death and bring the bank records to court.
• Keep a clear timeline of who had custody of the will and when it disappeared—this helps rebut the presumption of revocation.
• Act quickly to open probate; waiting can make it harder to locate witnesses and evidence.
• Consider mediation if family members dispute a lost will to limit litigation costs and emotional strain.