FastCounsel

How Rhode Island probate courts treat a missing or damaged original will

Rhode Island requires properly executed wills to be presented to the Probate Court for admission. If the original signed paper will cannot be located because it was lost or destroyed in the mail, the court does not automatically treat the estate as if there were no will. Instead, the person asking the court to probate the testator’s intentions (commonly the personal representative or a beneficiary) must prove three things to the court:

1. That a valid will was executed (proper signature and required formalities);
2. What the contents of the will were (that the copy accurately reflects the original); and
3. That the testator did not revoke the will before death.

Rhode Island probate judges will consider secondary evidence—witness testimony, affidavits, copies, and documentary evidence—when the original is unavailable. If the proponent can convince the court by sufficient evidence that a valid will existed and its contents, the court may admit a copy or other proof of the lost or destroyed will for probate.

Practical evidence that helps admission includes:

• Affidavits from the attesting witnesses who saw the testator sign the will (they can testify the will was properly executed and describe its contents or confirm a copy is accurate).
• A photocopy, scanned copy, or certified copy of the will that can be shown to match the original.
• Postal or courier tracking records and a claim/incident report showing loss or damage in the mail.
• Affidavits from the person who mailed the document or who handled it, describing steps they took to transmit and file it.
• Contemporaneous drafts, emails, or other documents that corroborate the terms of the will and the testator’s intent.

Steps to take right away

1. Search thoroughly. Check with the sender, the intended filing clerk, and any attorney or bank that handled the estate. Ask the mail carrier or carrier’s claims unit for tracking and incident reports.
2. Preserve copies. Locate and make certified copies or good-quality scans of any drafts, photocopies, or email copies. Do not alter these documents.
3. Obtain affidavits. Ask attesting witnesses, the person who mailed the will, and any custodian of a copy to sign sworn statements describing what they observed and the chain of custody.
4. File a probate petition. Even if you cannot immediately produce an original, you (or your attorney) should file with the Probate Court promptly and explain the situation, attaching copies and affidavits. Early filing shows you acted in good faith.
5. Serve interested persons. Give notice to heirs and beneficiaries so they can object or present competing evidence. Transparency reduces the risk of contested proceedings.

Possible outcomes

• If the court finds clear and convincing evidence that the original existed, was properly executed, and was not revoked, the court may admit a copy or other evidence and probate under the terms proven.
• If the proponent cannot prove those facts to the court’s satisfaction, the court may deny admission of the will. If that happens and there is no other valid will, the estate may be distributed under Rhode Island’s intestacy rules.
• If the will was damaged but the text is still legible, the court may accept the damaged original along with affidavits verifying the signature and execution formalities.

Where to find Rhode Island probate rules and statutes

For general Rhode Island Probate Court information, forms, and local procedures, see the Rhode Island Judiciary Probate & Family Court page: https://www.courts.ri.gov/Courts/ProbateFamilyCourt/Pages/default.aspx.

Rhode Island statutes governing probate, wills, and estates are found in Title 33 of the Rhode Island General Laws. You can browse Title 33 here: http://webserver.rilin.state.ri.us/Statutes/TITLE33/INDEX.HTM. If you plan to pursue admitting a lost or damaged will, ask the Probate Court clerk which statute or local rule the court applies and whether they require a specific petition form.

Helpful Hints

• Act quickly. Prompt searches, claims to the carrier, and filing with the Probate Court make a strong record of good-faith efforts.
• Keep originals of any related documents. Don’t throw away damaged pages or related drafts; even torn fragments can be evidence.
• Document the chain of custody. Create a timeline and retain all communications (emails, receipts, tracking numbers) about mailing and handling the will.
• Get sworn statements from attesting witnesses. Witness testimony about execution and contents is often decisive.
• Consider hiring an attorney experienced in Rhode Island probate. An attorney can prepare the petition, gather admissible evidence, and present proof at a hearing if necessary.
• Prepare for opposition. Heirs may contest admission; a careful evidentiary presentation reduces the chance a will copy will be rejected.
• If you are the mail carrier or a custodian, preserve all internal reports or records. Those administrative records can be powerful evidence of loss or damage in transit.