Illinois: What Happens If the Original Will Is Lost or Damaged in the Mail?

Detailed Answer

Short answer: In Illinois, a lost or damaged original will does not automatically void the will. The probate court can still admit the testator’s intent and the will’s terms through secondary evidence (a copy, witness testimony, affidavits, or other documents), but you must explain why the original cannot be produced and present acceptable proof of the will’s contents and valid execution.

Illinois handles wills under the Illinois Probate Act of 1975 (the Probate Act). The Act sets out how wills are executed and how courts may admit wills to probate. If the original will is missing or damaged after being mailed to the court, the personal representative, a presumptive executor, or any interested person should move quickly to preserve proof and to petition the county probate court where the decedent was domiciled.

Key points the court will consider

• Why the original is not available: You must explain the circumstances (for example, loss or damage in the mail) and show you did not intentionally withhold or destroy the original.
• Proof of execution: The court will require evidence the document was a valid will — typically the attesting witnesses’ testimony or affidavits, a notary’s certificate if applicable, or a prior certified copy from the drafting attorney.
• Proof of contents: If the original cannot be produced, secondary evidence (a photocopy, email attachments, drafts, attorney file copy, bank or safe-deposit records, and testimony from witnesses who saw or signed the will) may be accepted to prove the will’s terms.
• Fraud or revocation concerns: The court will evaluate whether the will was revoked by the testator (for example, deliberate destruction by the testator) or whether fraud or tampering occurred. If the original was destroyed through no act of the testator (for example, lost or damaged in the mail), the court will focus on authenticity and intent.

Typical court procedure in Illinois

1. Notify the probate court clerk in the appropriate county and file a petition for probate (even if you lack the original). Explain the missing/damaged original in the petition.
2. Attach a certified copy or a photocopy of the will if one exists. If you only have a photocopy, keep the copy intact and provide the court with all available supporting evidence (attorney file copies, signed drafts, email exchanges, bank records showing testator’s intent, etc.).
3. File affidavits from attesting witnesses or other witnesses who can verify the document’s execution and contents. If attesting witnesses are unavailable, present other credible testimony or documentary evidence.
4. The court may schedule a hearing. At that hearing the judge will weigh the evidence and decide whether to admit the copy or other evidence in place of the original. The court will also consider objections from interested persons.
5. If the mailing chain suggests tampering or loss by the carrier, open an inquiry with the United States Postal Service or carrier and preserve tracking, claim, and investigation records for the court.

For statutory background, see the Illinois Probate Act of 1975 (which governs wills and probate practice in Illinois): https://www.ilga.gov/legislation/ilcs/ilcs.asp?ActID=2106&ChapterID=60. The Act contains rules on execution, attestation, and probate procedures that guide how courts admit wills when the original is not available.

What if the will is damaged but partly legible?

If the mailed original arrives damaged but still legible in whole or in part, present the damaged original to the court along with an explanation of the damage and any evidence about how and when the damage occurred. The court may admit the damaged original or accept secondary evidence to reconstruct any missing portions. Keep the damaged original intact for inspection; do not attempt to repair or alter it without the court’s permission.

What if the will was intentionally destroyed by the testator before mailing?

Intentional destruction by the testator is typically treated as a revocation. If evidence shows the testator destroyed the original after execution with the intent to revoke, the will may be invalid. A mere inability to locate the original is not conclusive proof of revocation. The court reviews the totality of evidence about the testator’s intent.

When to get help

Because probate proceedings and evidentiary standards vary by county and the facts, consider consulting a licensed Illinois probate attorney promptly. If the missing or damaged original could produce disputes among heirs, you should act fast to preserve evidence and to file the correct probate papers.

Disclaimer: This article is educational only and is not legal advice. It does not create an attorney–client relationship. For advice about a specific situation, contact a licensed Illinois attorney.

Helpful Hints

• Act quickly: File a petition for probate and explain the missing/damaged original in your filing. Delay can complicate evidence preservation and raise objections.
• Preserve what you have: Keep photocopies, emails, attorney file copies, drafts, and any damaged pages in their current condition. Do not alter or destroy them.
• Get witness affidavits: Locate and obtain signed affidavits from attesting witnesses or others who can confirm the will’s execution and contents.
• Document the mailing incident: Save tracking numbers, USPS or carrier claim forms, photographs of damage, and any communications with the carrier. Consider filing a carrier claim and getting the investigation report.
• Contact the drafting attorney: The law office that prepared the will may have a certified copy or notes and can often supply a sworn statement about the will’s execution.
• Don’t assume revocation: A lost or damaged will is not automatically revoked. The court will look for proof of intent to revoke.
• Prepare for a hearing: Be ready to present secondary evidence and to testify about circumstances surrounding the will and the mailing.
• Consider forensic help if tampering is suspected: If theft or tampering is possible, preserve evidence and consider reporting to postal inspectors or law enforcement.
• Consult a probate attorney: Local rules, evidentiary requirements, and judges’ practices differ across Illinois counties; a local probate attorney can guide you through filing and hearings.