Detailed Answer — How Oregon law treats a lost or destroyed will
When an original will cannot be located after a person’s death, Oregon courts decide two basic questions: (1) did the decedent revoke the will; and if not, (2) can a substitute (a copy or reconstructed version) be admitted to probate so the decedent’s wishes can be carried out?
Oregon law governing wills appears in ORS Chapter 112. See the chapter overview here: ORS Chapter 112 (Wills).
Presumption of revocation when the original is missing
If the original will was last known to be in the decedent’s possession and cannot be found after death, courts commonly apply a rebuttable presumption that the testator intentionally revoked the will by destroying it. That presumption arises because many people destroy an old will when they intend to cancel it.
However, the presumption is not conclusive. The person seeking probate of the will can offer evidence to show the decedent did not intend to revoke the will and that the apparent destruction or loss happened for another reason (misplacement, accidental loss, theft, or some other circumstance).
Admitting a copy or reconstructed will
If the original is lost or destroyed but a copy exists (paper copy, photocopy, or electronic copy) or the will can be reconstructed from other evidence, Oregon courts may admit that material to probate if the proponent proves the will was validly executed and not revoked.
Typical evidence includes:
- Testimony from the witnesses who signed the will (attesting or subscribing witnesses) that the will was properly executed and that the testator did not revoke it before death.
- Affidavits from the custodian (attorney, bank, safe-deposit box officer) describing the decedent’s custody and the loss.
- Copies of the will (typed, handwritten, electronic) that reflect the terms of the original.
- Other contemporaneous documents or testimony showing the decedent’s intent (letters, emails, drafts, statements to friends or attorneys).
Court standards vary, but the proponent generally must present persuasive evidence that the original existed, was validly executed, and was not revoked. If the court is satisfied, it can admit the copy or reconstructed will and appoint the personal representative named in it (or otherwise distribute the estate according to its terms).
When the court finds a valid revocation
If the evidence shows the testator destroyed the will with the intent to revoke (for example, the testator tore up or burned the document, or explicitly told others they revoked it), the will is treated as revoked. If the will is revoked and no later valid will exists, the estate will pass under Oregon’s intestacy rules in ORS Chapter 112.
If only a partial will is available or the will appears altered
When portions of the will are missing or the document appears physically altered, courts will examine evidence about the original text and the testator’s intent. Where the entire dispositive scheme can be proven, the court may give effect to those proved parts. If the missing portion is essential and cannot be proven, the estate may fall back to intestacy for that part.
Practical steps to take right away
- Search everywhere the decedent kept important papers: home files, attorney safe, fireproof box, safe-deposit box, email and cloud storage.
- Contact the decedent’s attorney or law firm. Attorneys often keep originals or certified copies and can provide affidavits about execution.
- Ask family members and the decedent’s bank about a safe-deposit box. If a box existed, the bank or the court may have rules for opening it after death.
- Collect copies, drafts, emails, or other documents showing the will’s terms.
- Locate and talk to witnesses who signed the will or who were told about it; get written statements or affidavits if possible.
- Speak with an Oregon probate attorney promptly. They can evaluate the evidence and file the proper petition in the local circuit court if needed.
Burden and standard of proof
The proponent of a lost-or-destroyed will must convince the probate court that the will existed, was validly executed, and was not revoked. Courts generally require persuasive evidence; many require evidence that is clear and convincing. That means simple suspicion or weak testimony is usually insufficient.
What happens if the court rejects the attempted probate?
If the court finds the will revoked or cannot be proven, the estate will be distributed under Oregon’s intestacy rules (ORS Chapter 112) — typically to the decedent’s spouse, children, or other relatives depending on family structure.
Helpful Hints
- Start the search immediately. The earlier you gather evidence and witnesses, the stronger your position to admit a copy or reconstructed will.
- Preserve copies and electronic backups. Photocopies, scanned copies, and emails can be useful evidence.
- Document where you looked and who you contacted. A written record helps the probate record and supports your credibility in court.
- Get witness affidavits while memories are fresh. Witnesses who saw the will executed or who discussed it with the decedent can be key.
- If you suspect deliberate destruction, gather contemporaneous communications (texts, emails, letters) that show intent to revoke or not.
- Consult a probate attorney in the county where the decedent lived. Probate procedures and local practices vary between Oregon counties.
- Act quickly to protect estate assets. An attorney can file a temporary petition to secure property while the probate dispute is resolved.
Disclaimer: This article explains general legal principles under Oregon law and is for educational purposes only. It is not legal advice. For advice about a specific situation, consult a licensed Oregon attorney.