Probating a Copy of a Will in Arkansas: How to Avoid the Presumption of Revocation

Quick overview: When an original will cannot be located after someone dies, Arkansas law and Arkansas courts recognize a presumption that the testator revoked the will by destroying it. To have a copy of the will admitted to probate without that presumption controlling the case, you must file a petition in the appropriate Arkansas probate court and present evidence that overcomes the presumption of revocation and establishes the copy’s authenticity and the will’s proper execution.

Where to file and basic procedure

File a petition to admit the will (or a petition to probate a copy of the will) in the circuit court in the county where the decedent resided at death. The court will notify interested persons, hold a hearing, and decide whether to admit the copy to probate. The court also will appoint (or confirm) a personal representative if appropriate.

Why courts presume revocation when the original is missing

When an original will cannot be found among the decedent’s papers or effects, courts often apply a presumption that the testator intentionally destroyed the original as an act of revocation. That presumption shifts the burden to the party asking the court to admit a copy: you must produce evidence showing either that the testator did not revoke the will or that the original was lost or destroyed without the testator’s intent to revoke.

How to overcome the presumption and get a copy admitted

To probate a copy successfully in Arkansas you generally must do the following things and be prepared to prove them at a hearing:

1. Show the original is truly missing: Describe a thorough search for the original (where you looked and who looked). Provide sworn statements (affidavits) from the person who kept the will, close family, or the decedent’s attorney that the original cannot be found.
2. Prove the copy is authentic: File the best available copy of the will (typed or photographic). Provide witnesses or other evidence establishing that the copy accurately reflects the decedent’s testamentary writing.
3. Establish due execution: Prove the will was properly executed according to Arkansas law (the presence of the attesting witnesses’ signatures, the testator’s signature, and the formalities required at the time the will was made). If subscribing (attesting) witnesses are available, their testimony or affidavits are especially important.
4. Disprove intent to revoke: Offer evidence that the decedent did not intend to revoke the will. Examples: testimony that the decedent never tore, burned, or otherwise destroyed the will; evidence the decedent stored the will with an attorney and would not have revoked it; communications or later documents showing consistent testamentary intent.
5. Provide competent witness testimony or other proof: If one or both attesting witnesses are unavailable, other credible witnesses who knew the execution circumstances, the testator’s intent, or who can authenticate the copy may help. Documentary evidence (attorney file notes, drafts, or contemporaneous correspondence) also helps.
6. Ask for the appropriate judicial remedy: Depending on the facts, the court may admit a copy into probate (sometimes with limited effect) or may decline if the proof is insufficient. You should ask the court to admit the copy and explain the evidence you will present.

Standards of proof and what Arkansas courts expect

Courts generally require convincing, credible evidence to admit a copy where the original is missing. Many jurisdictions apply a heightened standard (often described as “clear and convincing” evidence) to overcome the destruction/revocation presumption. Expect the court to evaluate all available direct and circumstantial evidence: witness affidavits, attorney or custodian testimony, the search for the original, and the copy itself.

Evidence that commonly helps in Arkansas cases

• Affidavit by the custodian (attorney, bank safe deposit officer, family member) that the original was entrusted to them and is missing.
• Affidavits or live testimony from the attesting witnesses describing the execution ceremony.
• A contemporaneous attorney file or notes showing the will’s preparation and delivery.
• Evidence of the decedent’s habits (e.g., kept an executed original in a known place and it was not there after death).
• Proof the decedent lacked capacity or opportunity to revoke after the last known execution (helps if the copy was the final expression of intent).

Pertinent Arkansas resources

State law on wills and probate is codified in Arkansas statutes. For general code access, visit the Arkansas General Assembly website for the Arkansas Code: https://www.arkleg.state.ar.us/. For court forms, filing rules, and local procedures you can also consult the Arkansas court system at https://www.arcourts.gov/.

Practical example (hypothetical facts)

Say an attorney has a photocopy of a decedent’s will, but the file’s original is missing. The custodian files a petition in the decedent’s county circuit court, attaches a copy, and files affidavits: the attorney’s affidavit describing where the original was kept and when it was discovered missing; affidavits from two attesting witnesses describing the signing ceremony; and a sworn statement that a thorough search of the decedent’s home and personal effects turned up no original. At the hearing the court reviews the affidavits and may hear live testimony. If the judge finds the evidence overcomes the presumption of revocation and that the copy accurately reflects the decedent’s estate plan, the court can admit the copy to probate and allow administration under that instrument.

When you should get a lawyer

If the missing original is likely to trigger disputes among heirs, if the attesting witnesses are unavailable, or if the facts are contested (for example, one person claims the decedent revoked the will), you should consult an Arkansas probate attorney. A lawyer can prepare the petition, gather admissible evidence, depose witnesses if necessary, and present the proof the court needs to rule in your favor.

Disclaimer: This article explains general principles under Arkansas law and is for educational purposes only. It is not legal advice and does not create an attorney-client relationship. For advice about a specific situation you should consult a licensed Arkansas attorney.

Helpful Hints

• Start with a complete, written inventory of where the original might have been kept and who had access.
• Obtain signed affidavits from anyone who helped look for the original (attorney, family members, bank personnel).
• Locate and preserve any drafts, attorney file notes, email exchanges, or contemporaneous records that show the will’s creation and delivery.
• If attesting witnesses are available, get sworn affidavits from them quickly; memories fade and testimony is more persuasive soon after death.
• File the petition promptly—delays can make it harder to convince a judge the original wasn’t intentionally destroyed later.
• Be prepared for a hearing and bring original affidavits and any corroborating documents; hearsay alone is often insufficient.
• If people disagree about whether the will was revoked, expect litigation; early legal help lowers the risk of losing the chance to probate the copy.