Detailed Answer: How Louisiana courts handle a missing or destroyed will
When the original will cannot be found, Louisiana law treats two separate questions: (1) did the testator actually revoke the will by a deliberate act (for example, tearing or burning it), and (2) if not revoked, what proof can a proponent use to get the testator’s wishes admitted to probate?
Presumption of revocation by physical destruction
If the original will is found to have been intentionally destroyed by the testator (or by someone acting at the testator’s direction), Louisiana courts generally presume the testator intended to revoke it. That presumption arises because destroying the paper is a common and clear sign of an intent to revoke. To overcome this presumption, the person who wants the will admitted must present persuasive evidence showing the testator did not intend revocation despite the destruction.
What if the will is simply lost or destroyed accidentally?
Loss or accidental destruction does not automatically revoke a will. Louisiana allows a court to admit secondary evidence of the will’s contents and of due execution when the original cannot be produced, provided the proponent proves the will existed, accurately reflects the testator’s intentions, and was not revoked. That proof usually comes from witnesses, retained copies, drafts, correspondence, notarized records, or other reliable evidence. The burden is on the person asking the court to admit the will.
Practical proof and types of supporting evidence
Common forms of proof used in Louisiana to admit a lost or destroyed will include:
- Testimony from attesting witnesses who saw the original will and can vouch for its contents and for proper execution;
- Copies or photocopies of the will, including emailed PDFs or scans that match the missing original;
- Drafts, notes, letters, or other documents showing the testator’s intent and the substance of the dispositions;
- Notarial or public records: with certain notarial wills, the notary or notarial records may contain contemporaneous evidence that helps prove the instrument and its execution;
- Testimony that the testator kept the will in a particular place (safe-deposit box, home safe) and that a missing original was not destroyed by the testator.
Procedural steps in Louisiana probate court
- File a petition in the succession court asking the court to admit the lost will to probate and explain why the original cannot be produced.
- Provide affidavit(s), witness testimony, and documentary evidence proving (A) the instrument existed, (B) its contents, and (C) that the testator did not revoke it intentionally.
- The court will evaluate the evidence. If the court finds the proof convincing, it can admit a copy or the proved contents and distribute assets according to the proved will. If the court finds the evidence insufficient or finds proof of revocation, the estate will pass by intestacy or under any later valid testamentary document.
Differences depending on the type of will
Louisiana recognizes different kinds of wills (for example, notarial/authentic wills and olographic/holographic wills). The strength and availability of secondary proof can vary:
- Notarial/authentic wills often generate contemporaneous notarial acts or entries that may remain in the notary’s records and can help reconstruction.
- Holographic/olographic wills (handwritten by the testator) rely heavily on witness testimony or authenticated copies when the original is missing.
Hypothetical example
Suppose Marie had a handwritten will leaving her home to her nephew. After Marie’s death, no one can find the original. Two friends who witnessed the will testify about its contents and execution, and a scanned copy of the will exists on Marie’s laptop. If they show the court the scan, the witnesses confirm it matches the original, and there is no evidence Marie destroyed the paper with intent to revoke, the court may admit the scanned copy or the proven contents and carry out Marie’s wishes.
By contrast, if someone testifies they saw Marie tear the will into pieces on purpose, the court will likely presume revocation and refuse to probate the prior document unless strong evidence rebuts that presumption.
Where the statute and rules live
Louisiana’s rules on wills and succession are in the Louisiana Civil Code and related succession law. For the official texts and exact provisions, consult the Louisiana Legislature’s site and search the Civil Code or the succession/wills sections: https://www.legis.la.gov/Legis/LawSearch.aspx. For practical guidance from the state bar, see resources provided by the Louisiana State Bar Association.
Key takeaways
- Lost or accidentally destroyed wills can sometimes be proved and admitted to probate using secondary evidence.
- Intentional destruction by the testator creates a presumption of revocation that the proponent must overcome.
- The proponent of a lost will bears the burden to prove the will’s existence, contents, and lack of revocation.
- Different types of wills (notarial vs. handwritten) affect what evidence is available and how strong it is.
Disclaimer: This information is for general educational purposes only and is not legal advice. Consult a licensed Louisiana attorney before taking legal action related to wills, succession, or probate.
Helpful Hints
- Act quickly after someone dies. Search likely locations (safe-deposit boxes, lawyer or notary files, home safes) and ask relatives and attorneys if they hold the original or a certified copy.
- Contact the notary who prepared the will. Notaries often keep records or can confirm that an authentic act was executed.
- Collect all available copies and drafts—scans, emails, photocopies, and digital files can be helpful evidence.
- Identify and prepare witnesses who saw the will signed or who can testify about the testator’s habits and statements.
- Do not destroy or alter any potential evidence. Preserve any remaining paper or electronic files as-is.
- If you suspect the testator destroyed the will intentionally, be prepared for a higher burden of proof to rebut that presumption.
- Hire a Louisiana probate attorney early. Probate rules and evidentiary standards vary; an attorney can gather the right proofs and present them to the succession court effectively.
- Keep beneficiaries informed. Transparency reduces conflict and helps identify witnesses and evidence quickly.