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

Disclaimer: This article is for informational purposes only and is not legal advice. I am not a lawyer. If you need legal advice about probating a will in Hawaii, consult a licensed Hawaii attorney or the probate court.

Detailed answer — what you must know

When someone dies in Hawaii, the original signed will is the primary document the probate court uses to distribute the decedent’s property. If the original will cannot be found after death and only a copy exists, Hawaiian courts will typically consider whether the missing original was revoked. Many jurisdictions, including Hawaii, apply a presumption: if the testator last had the original will in their possession and it cannot be found after death, the court may presume the testator destroyed or revoked the will. To probate a copy successfully, you must overcome that presumption and give the court convincing evidence that the decedent did not revoke the will and that the copy accurately shows the decedent’s last wishes.

For Hawaii statutory background about probate and estate administration, see Hawaii Revised Statutes, Probate and Administration (Chapter 560): https://www.capitol.hawaii.gov/hrscurrent/Vol10_Ch0501-0588/HRS0560/. For general probate procedure and local forms, see the Hawaii State Judiciary website: https://www.courts.state.hi.us/.

Key steps to probate a copy of a will in Hawaii

Search thoroughly for the original. Look in the decedent’s home, safe-deposit boxes, attorney files, bank safe custody, personal papers, desk drawers, and with the decedent’s family, friends, or lawyer. Document your search in writing. A documented, reasonable search helps defeat a presumption of revocation.
Collect direct evidence that the original was not revoked. Useful evidence includes: testimony or affidavits from the witness attesting to the will’s execution, contemporaneous emails or letters referencing the will, testimony that the decedent kept the will elsewhere and did not destroy it, a photocopy or electronic version verified as a true copy, and any evidence showing the decedent intended the will to remain effective.
Obtain affidavits from attesting witnesses. If one or more of the original attesting witnesses are available, obtain sworn statements that they observed the decedent sign the will and that the decedent was of sound mind and not under undue influence. Their affidavits carry strong weight. If an attesting witness is unavailable or deceased, statements from other credible witnesses who knew the testator’s intent can still help.
Prepare and file a petition to admit the copy to probate. File in the appropriate Hawaii probate court (usually the circuit court in the county where the decedent lived). In your petition state that the original cannot be found, describe the search, attach the copy to be admitted, and attach evidence supporting non-revocation (affidavits, copies, correspondence, etc.). The court will set a hearing and require notice to interested parties.
Prove the copy’s authenticity and the absence of revocation at hearing. At the hearing, present documents and sworn witness testimony showing the copy accurately reflects the decedent’s last will and that the decedent did not revoke the original. The court will evaluate whether the evidence overcomes any presumption that the missing original was revoked.
Respond to objections. People with an interest in the estate may contest admission. Be prepared to counter claims with documentary and testimonial evidence, and to explain gaps or missing signatures consistent with the decedent’s actions or circumstances.

Types of evidence that help overcome the presumption of revocation

Affidavits from the will’s attesting witnesses describing the signing and the testator’s condition.
Sworn statements that the decedent stored the original with a lawyer, bank, or family member and it went missing only after death.
A signed photocopy or scanned copy of the original will that matches the alleged original.
Correspondence, estate planning notes, drafts, or metadata showing the testator’s intent and the will’s contents.
Evidence of theft, loss, or accidental destruction (police report, testimony). If the original was stolen or destroyed by someone other than the testator, that rebuts a presumption of revocation.

Practical tips about what courts look for

Courts look for clear, credible, and preferably contemporaneous proof. A single missing page or stray alteration may raise suspicion. A consistent record — a witness affidavit describing the execution, a contemporaneous signed copy, and a documented search for the original — gives a much stronger case than a bare photocopy alone.

Hypothetical example

Mary died owning a home and bank accounts. Her original executed will cannot be found. Her attorney has a signed, dated photocopy, and one attesting witness is available and signs an affidavit recounting the signing and Mary’s mental state. Mary’s daughter testifies she saw Mary place a sealed envelope (the will) in a lawyer’s file cabinet but the cabinet lock was recently broken and documents went missing. The petition to admit the copy includes the photocopy, the attesting witness affidavit, the daughter’s statement, and a record of the search. The court finds the evidence sufficient to admit the copy and distribute the estate under its terms.

Potential timeline and costs

Timeframes and fees vary by county and case complexity. Simple uncontested petitions can take a few weeks to a few months. Contested matters take longer and cost more because of discovery, hearings, and possibly appeals. Expect court filing fees, service fees, and attorney fees if you hire counsel.

When to consult an attorney

If interested parties disagree about whether the will was revoked.
If the missing original’s circumstances are suspicious (alleged destruction, theft, or last-possession questions).
If significant assets or complex estate planning are involved.
If you are an executor/administrator unsure how to proceed with notices and filings.

A qualified probate attorney can help prepare the petition, gather and present evidence, and represent you at hearings. The Hawaii Judiciary website and local bar associations can help you find counsel.

Helpful hints

Document every step you take: searches, who you asked, and where you looked.
Obtain sworn affidavits from anyone who saw the will executed or who handled the original after execution.
Keep any copy (paper or electronic) in multiple safe places and preserve chain-of-custody information for how you obtained the copy.
If a safe-deposit box is involved, get a bank affidavit about access after death and whether items were removed.
Be proactive about notifying heirs and creditors per probate rules; failure to provide notice can lead to delays or challenges.
If theft or foul play is suspected, report it to law enforcement and preserve records.
Use plain, clear affidavits that state facts (who, what, when, where) rather than conclusions or opinions about intent.
When in doubt, contact the probate clerk at your county circuit court for filing requirements and local practice suggestions.

If you need help locating a probate attorney in Hawaii, the Hawaii State Bar Association and local county bar referral services can assist.

Final reminder: This article explains general principles and common practice in Hawaii, but it is not legal advice. Consult a licensed Hawaii attorney to address your specific situation.