Detailed Answer

Short answer: Under Wisconsin law, a will that is lost or destroyed can still be accepted by the probate court, but the person trying to admit the will (the proponent) must prove the will’s existence, contents, and that it was not revoked. If the proponent cannot meet that burden, the estate may be distributed under Wisconsin’s intestacy rules.

How Wisconsin law treats lost or destroyed wills

Wisconsin law recognizes two separate problems when an original will cannot be located after the testator’s death:

• Was the will validly executed (signed and witnessed) when it was made?
• Did the testator revoke the will by a later act (for example, tearing, burning, or other destruction) or by creating a later will?

A court will admit a copy of a will or allow proof of a lost/destroyed original when the proponent offers sufficient evidence of both the will’s original validity and that it was not revoked by the testator.

See Wisconsin statutes on wills for the general statutory framework: Wis. Stat. ch. 853 (Wills).

Common scenarios and how courts usually handle them

1) Testator intentionally destroyed the will before death

If the testator destroyed the will with the intent to revoke it (for example, tearing it up or burning it while saying the will is revoked), most courts treat that as a valid revocation. A proponent who later tries to submit a copy must overcome the strong presumption that the testator intended revocation. That typically requires clear and convincing evidence to the contrary.

2) Original is lost after the testator’s death (no evidence of revocation)

If the original cannot be found after death and there is no proof the testator intended to revoke, a probate court may admit a copy of the will or allow testimony describing the contents and execution. Witness testimony, contemporaneous drafts, photocopies, e‑mails, or other proof that the will existed and was valid can persuade the court to admit the will.

3) Original destroyed by accident or by a third party

If the original was destroyed accidentally or by someone other than the testator, the proponent must show the will’s contents and that the testator did not intend to revoke it. Proof often includes testimony from people who saw the signed will, copies, or other corroborating documents.

4) Only a photocopy or draft exists

Courts may admit a photocopy or draft, but the proponent will usually need to present additional evidence that the copy accurately reproduces the valid original and that no revocation took place.

What the proponent must prove

While exact proof standards and procedures vary by case, the proponent generally must show:

• The will was validly executed (signed by the testator and properly witnessed under Wisconsin law).
• The original existed and contained the terms offered as the will’s contents (this can be proved by witnesses, copies, or other documents).
• The testator did not revoke the will by a subsequent act or later will.

Courts weigh the totality of the evidence. Testimony from subscribing witnesses (those who signed with the testator) is especially persuasive.

What happens if the proponent cannot prove the will?

If the court finds the proponent has not met the burden, it will refuse to admit the will. The estate then distributes as if there were no valid will — by Wisconsin’s intestacy rules (close relatives inherit under statutory shares).

Practical steps to take if the original will is missing

1. Stop searching the estate and common filing places thoroughly (safes, attorney files, bank safe deposit, safety deposit box, home files).
2. Gather every copy, draft, or electronic file of the will. Save any related emails or notes from the testator about estate plans.
3. Identify and contact witnesses who saw the will executed or who discussed its contents with the testator.
4. Check with the attorney who prepared the will — many attorneys keep originals or copies and may have a notarized copy or file notes.
5. File a probate petition in the county where the decedent resided and provide the court with the available evidence. If you are the personal representative, act promptly to avoid delays.

Timeline and court process

Procedures and timelines vary by county. Generally, you will:

1. File a petition to open probate and to admit the will (or to determine intestacy).
2. Provide copies and affidavits supporting the will’s validity.
3. Allow interested persons (heirs, beneficiaries) notice and an opportunity to object.
4. Attend a hearing where the court decides whether to admit the copy or other proof of the will.

If the court admits the will, probate proceeds under the will’s terms. If not, the court distributes assets under intestacy rules.

Hypothetical examples

Example A — Lost after death, witnesses available: Jane’s original will cannot be found after she dies. Two people who witnessed Jane sign the will testify to its execution and content, and Jane’s attorney provides a photocopy and file notes. The court admits the copy and allows probate under Jane’s will.

Example B — Destroyed by testator with apparent intent: Mark burned his will in a fit of anger several months before he died and said aloud that the will was revoked. A proponent later tries to admit a copy. The court presumes Mark revoked the will and refuses to admit the copy unless very strong counter-evidence appears.

Where to find the law

Wisconsin’s governing provisions for wills and probate procedure are collected in the Wisconsin Statutes. See the chapter on wills here: https://docs.legis.wisconsin.gov/statutes/statutes/853.

For information on probate procedure and forms, the Wisconsin court system’s website has self-help resources and local court contacts: https://www.wicourts.gov.

This is not legal advice. The information above explains general Wisconsin principles about lost and destroyed wills but does not apply to every situation. Consult a Wisconsin probate attorney to evaluate your specific circumstances and represent you in court.

Helpful Hints

• Act quickly — locating witnesses and copies becomes harder with time.
• Collect any electronic traces (scans, emails, drafts) and preserve them; courts accept digital evidence when properly authenticated.
• If an attorney drafted the will, contact that attorney even if they say they do not have the original — firm files often contain helpful records.
• Prepare affidavits from witnesses who saw the will executed or who can confirm the testator’s statements about its contents.
• Expect objections — notify likely heirs and interested parties early to reduce surprises and contested hearings.
• Keep detailed notes of your search for the original (dates, places searched, who helped); the court may consider your efforts.
• Consult a probate lawyer in Wisconsin early. An attorney can file the right petition, organize evidence, and present proof at the hearing.