Disclaimer: This is general information, not legal advice. I am not a lawyer. For decisions about a specific estate or will, consult a Louisiana attorney.
Detailed answer
When an original testament does not reach the court because it was lost or damaged while being mailed, Louisiana law allows the succession court to consider alternative proof so the decedent’s wishes can still be enforced. The exact steps and the evidence the court will require depend on how the original was lost or damaged and what other proof exists.
Key legal ideas (Louisiana)
- Louisiana follows its Civil Code and succession procedures when resolving whether a testament is valid and what it contained. You can start at the Louisiana Legislature’s law search to review Civil Code provisions on successions and testaments: https://legis.la.gov/Legis/LawSearch.aspx
- The court’s job is to determine whether an original testament existed, what its terms were, and whether the testator revoked it before death. If the original cannot be produced, the court may admit other evidence of the testament’s contents.
Typical situations and what courts expect
Below are common scenarios and how a Louisiana succession court will generally handle them:
1) Original lost in transit (mail lost)
If the original was mailed to the clerk or registrar and never arrived, the court will look for convincing evidence that:
- The testator actually executed an original valid testament;
- The version offered (e.g., a photocopy) accurately reflects the original’s contents;
- The testator did not revoke the will before death.
Evidence that helps: a clear photocopy or electronic copy of the original; affidavits from the notary, witnesses, or the attorney who prepared the will; testimony from witnesses who saw the executed will; mail or tracking receipts showing the will was mailed; and any registry or filing receipts. The court may order an evidentiary hearing before admitting a non-original copy.
2) Original damaged in transit (partly destroyed or illegible)
If the mailed original is returned damaged but still identifiable, the court may treat it as the original if the judge can determine it is the authentic testament and if the damage does not indicate revocation by the testator. If key portions are unreadable, the court will rely on any reliable copies, witness testimony, or other proof to reconstruct the testator’s intent.
3) Evidence of intentional revocation vs. accidental loss
Under Louisiana practice, courts are careful about finding a revocation. A will is typically revoked by the testator’s intentional act (for example, burning or tearing with intent to revoke). A mere loss in the mail does not by itself show intentional revocation. If someone claims the testator revoked the will, that person bears the burden of proving revocation. On the other hand, the party asking the court to admit a copy must present persuasive evidence of the original’s contents and of the absence of revocation.
What to expect procedurally
- Notify the clerk/registrar and the court. Tell the clerk that the original was sent and did not arrive or arrived damaged. Ask the clerk to note the circumstance in the succession file.
- Preserve evidence of mailing. Keep receipts, tracking numbers, certified-mail return receipts, and any postal claims or investigation numbers. These support the story that the original existed and was sent, not destroyed by the testator.
- Gather backup proof. Collect attested copies, drafts, electronic copies, notary or attorney affidavits, and the testimony contact information for the witnesses who were present when the will was signed.
- File a petition to open the succession and to admit the copy (or to admit the damaged original). In many parishes the clerk will help by explaining local filing steps; a lawyer will draft the petition and supporting affidavits and evidence.
- Court hearing. Expect the judge to require an evidentiary hearing where witnesses may testify about the execution of the will, its contents, and whether the decedent revoked it.
- Possible remedies. If the court is satisfied by the evidence, it can admit the copy or the damaged original for probate and order distribution according to those terms. If the court finds insufficient proof, it may deny admission and distribute the estate under intestacy rules or a previously proven testament.
Practical example (hypothetical)
Suppose Mr. A signed a handwritten (holographic) testament in the presence of two witnesses. He mailed the original to the parish court for safekeeping. The postal service reports the envelope as lost. Mr. A dies. His heirs produce a clear photocopy of the handwritten testament and two witness affidavits describing the signing. The court will likely allow a hearing, hear the witnesses, review the photocopy, and may admit that copy as proof of the testament if the judge is convinced the original existed and was not revoked.
Relevant Louisiana resources
- Louisiana Legislature law search (Civil Code & succession provisions): https://legis.la.gov/Legis/LawSearch.aspx
- Law Library of Louisiana (succession & probate materials): https://www.lawlib.state.la.us/
Helpful Hints
- Act quickly. Notify the clerk and assemble evidence right away. Postal investigations and witness memories are time-sensitive.
- Get affidavits from witnesses and from the attorney or notary who prepared the will. Sworn statements carry weight in court.
- Keep copies and electronic scans of any original documents you possess. A contemporaneous copy plus witness testimony is the core evidence used when an original is missing.
- Fetch mailing proof. Certified-mail receipts, tracking logs, or a postal service claim number strengthen your position that the original was mailed and lost by the carrier.
- Consider an attorney. Probate and succession rules in Louisiana are unique and involve civil-law concepts. An attorney familiar with Louisiana successions can file the correct petition, prepare witnesses, and present evidence effectively in court.
- Don’t assume revocation. Loss in the mail does not prove the testator revoked the will. The court will require proof of intent to revoke before discarding a testamentary document.
- If unable to prove the full terms, the court may distribute under intestacy rules. Maintain realistic expectations and prepare backup evidence where possible.
If you want help locating a Louisiana attorney experienced in successions and probate, provide the parish where the succession will be opened and any documents or copies you already have. An attorney can advise on petition drafting, filings, and courtroom proof strategy.