Detailed Answer

If the original will is lost or damaged in the mail on its way to the courthouse, Hawaii probate law provides ways for the court to consider the testator’s intent even when the original instrument cannot be produced. The practical outcome depends on whether the loss or damage was accidental (or caused by a third party) and whether you can prove the will’s terms and that it was not revoked by the testator.

How Hawaii law treats a missing or destroyed original will

Hawaii’s probate law (see Hawaii Revised Statutes, Chapter 560, Probate Code) allows the probate court to admit a will even if the original document cannot be produced, provided the proponent of the will can prove the will’s contents and that it was properly executed and not revoked. The court will examine the available evidence and may require testimony or affidavits from attesting witnesses, the attorney who drafted or mailed the will, and others with knowledge of the circumstances. For statutory text and general probate rules see the Hawaii Revised Statutes, Chapter 560: https://www.capitol.hawaii.gov/hrscurrent/Vol10_Ch0501-0588/HRS0560/.

Common legal standards and likely court approach

Although exact procedures and evidentiary standards are set by the probate court, the usual approach is:

• The proponent files a petition to admit the will (often attaching a copy if one exists) and asks the court to hold a hearing.
• The court will expect convincing evidence of the will’s terms, proper execution, and that the testator did not revoke the will. Courts commonly require clear and convincing proof when admitting a copy of a lost or destroyed will.
• If the court accepts the proof, it may admit the copy for probate and distribute the estate according to the admitted will. If the court is not satisfied, the estate may be treated as if there were no valid will (intestate succession).

What to do right away if an original will is lost or damaged in the mail

1. Preserve and document: keep any damaged document and take clear photos. Save tracking numbers, mail receipts, and any return envelopes.
2. Contact the carrier: open an investigation with USPS or the private carrier and get written confirmation of the loss or damage if possible.
3. Contact the probate clerk: call the probate division of the Hawaii court where the will was being sent (Hawaii State Judiciary self-help probate pages: https://www.courts.state.hi.us/self-help/family/probate ). Ask for the clerk’s guidance on filing and on what evidence the court typically requires for a lost original will.
4. Collect evidence: obtain any copies the attorney or testator may have kept; collect drafts, emails, file-stamped copies, witness affidavits, and the attorney’s file notes showing the will’s content and the fact of mailing.
5. Get witness statements: locate and ask the attesting witnesses (those who signed the will) to give sworn affidavits or be available to testify that they saw the testator sign the will and that the testator appeared competent and did not revoke it.
6. Talk to a probate attorney: an attorney can draft the petition, assemble evidence, and represent you at the hearing.

Evidence the court will want to see

• A clean, legible copy of the will (if one exists — for example, a photocopy or a copy retained by the drafting attorney).
• Affidavits or testimony from attesting witnesses who saw the will executed.
• The attorney’s file showing the original will was prepared and mailed — including dated drafts, emails, cover letters, and a mailing receipt or certificate of service.
• Carrier tracking records, loss/damage reports from the carrier, and any evidence the original was lost in transit rather than intentionally destroyed by the testator.
• Any contemporaneous statements by the testator indicating they did not revoke the will.

Possible outcomes

• If the court is satisfied by the evidence, it may admit a copy of the will to probate and appoint the named executor to administer the estate according to that will.
• If the court finds the evidence insufficient or finds the testator revoked the will, the estate may be distributed under Hawaii’s intestacy rules (see HRS Chapter 560) or according to any other valid succession documents.

Helpful Hints

• Act quickly. The sooner you document the loss and collect evidence, the stronger your position at a hearing.
• Keep and preserve any damaged pages. Even a partially damaged original can help the court determine authenticity.
• Request written proof from the carrier that the item was lost or damaged — this becomes important evidence at any hearing.
• Locate the drafting attorney’s file. Lawyers commonly keep a copy or original of the executed will; if the lawyer has the original, that may simplify probate.
• Get attesting witnesses to prepare sworn affidavits while memories are fresh. Their statements about execution and intent are critical.
• Be prepared for a hearing. The probate judge may require testimony under oath and may evaluate credibility and documentary proof before admitting a copy.
• Consider alternative dispute prevention: when you prepare or update a will, ask the attorney to keep the original in a safe place or to record where it will be filed to avoid mailing risks.
• If you are executor or beneficiary and you suspect mail tampering or theft, consider reporting it to law enforcement in addition to filing a carrier claim.
• Consult a probate attorney licensed in Hawaii as soon as possible — the process and required proof are fact-specific.