Detailed Answer — How Massachusetts Probate Courts Treat Lost or Destroyed Wills

When the original signed will cannot be found after a testator’s death, Massachusetts probate courts consider two different issues:

1. Whether the will still exists (was it destroyed intentionally)? A will can be revoked by the testator through a deliberate physical act (for example, tearing or burning) done with the intent to revoke. Massachusetts law requires a clear showing of such intent before the court will treat the will as revoked. If someone else destroyed the document without the testator’s intent to revoke, revocation will generally not be presumed.
2. Whether the contents of the will can be proved without the original paper. If the original signed will is lost or destroyed but the proponent (usually a person seeking admission of the will) can prove the contents and valid execution by clear and convincing evidence, the court may admit the will to probate as the decedent’s last will and testament.

Practically, that means the person who wants the will admitted must present persuasive secondary evidence: a reliable copy of the will, testimony or affidavits from the witnesses who saw the will signed, or other strong proof that the document existed, was properly executed under Massachusetts formalities, and was not revoked by the testator.

Massachusetts law governing wills and probate procedure is found in the Massachusetts Uniform Probate Code (Chapter 190B of the Massachusetts General Laws). For the statutory framework and definitions used by the courts, see the statute: https://malegislature.gov/Laws/GeneralLaws/PartIII/TitleII/Chapter190B and the Probate and Family Court resources on Mass.gov: https://www.mass.gov/orgs/probate-and-family-court.

Hypothetical Example

Maria died in Boston. Her original will cannot be found. Her lawyer locates a clean photocopy of the signed will, and two neighbors who were witnesses are willing to sign affidavits saying they saw Maria sign the will and that she seemed of sound mind. No evidence shows Maria destroyed the paper with intent to revoke it.

In this situation, the probate court will usually allow a petition to admit the will based on the photocopy plus witness affidavits and other proof. The court applies a clear-and-convincing standard and may require testimony at a hearing before admitting the will. If admitted, the probate process continues under that will. If the evidence is weak or conflicting, the court may find the will revoked or decline to admit it, and intestacy rules would then govern asset distribution.

Key Legal Principles

• Revocation by physical act requires proof the testator intended to revoke the will by destroying or mutilating it. Evidence of destruction alone does not prove intent.
• If the original is lost or destroyed by accident or by another person (without the testator’s intent to revoke), the will can still be proved by secondary evidence.
• The proponent must show the contents and proper execution of the will by clear and convincing evidence before a probate court will admit a non-original will.
• If the will cannot be proved, the estate will be distributed according to Massachusetts intestacy rules found in the Massachusetts probate statutes (Chapter 190B).

Typical Steps to Take if the Original Will Is Missing

1. Search thoroughly: check the decedent’s home, files, safe deposit boxes, attorney’s office, and wherever important papers were kept.
2. Contact the attorney who drafted the will and ask whether they retained a copy and whether they hold the original in escrow.
3. Ask witnesses (those who signed or saw the will) to provide sworn affidavits or be available to testify about execution and the testator’s intent.
4. Gather all copies (photocopies, electronic scans) and any drafts or versions that show the will’s content.
5. File a petition in the Massachusetts Probate and Family Court to admit the will and provide the court with the best available evidence.
6. If someone claims the will was destroyed intentionally (revoked), be prepared for the court to hold a hearing on intent and possible contest by heirs.
7. Consider hiring a probate attorney experienced in Massachusetts probate litigation; courts require precise proof and process steps.

Helpful Hints

• Don’t assume a lost original means the will is invalid. Courts admit wills without originals when there is strong proof of contents and execution.
• Act quickly. The longer you wait, the harder it can be to collect reliable witness testimony and contemporaneous records.
• Keep any drafts or copies. A clear photocopy plus credible witness testimony can be enough in many cases.
• If the will appears intentionally destroyed, document who had access to the decedent’s papers and any statements showing intent.
• Notify relatives and potential heirs as required by court rules. Failing to give required notice can delay probate and lead to challenges.
• Expect the probate court to apply a high standard of proof (clear and convincing) before admitting a will without the original.
• Consult the Probate and Family Court or a probate attorney early. The court’s forms and local rules vary by county; an attorney helps with petitions, affidavits, and hearings.