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Disclaimer

This article explains how Rhode Island law generally treats wills that are lost or destroyed. This is educational information only and is not legal advice. Consult a licensed Rhode Island probate attorney about your specific situation.

Detailed Answer

Basic rule: In Rhode Island, a will that cannot be located or that has been destroyed raises two different legal questions: (1) did the testator (the person who made the will) revoke the will intentionally, and (2) if not revoked, can the will’s contents be proved so the court can admit it for probate?

Presumption of revocation by destruction: If a will is found to have been intentionally destroyed, Rhode Island treats that act as strong evidence the testator intended to revoke it. If a document was burned, torn, or otherwise destroyed by the testator (or by someone in the testator’s presence and at the testator’s direction), the probate court will generally presume the testator revoked the will. To overcome that presumption, interested parties must present clear evidence the destruction did not reflect an intent to revoke.

Missing will (lost, misplaced, or accidentally destroyed): If a will is simply missing or accidentally destroyed (for example, lost in a flood with no evidence of intentional cancellation), Rhode Island probate courts allow admission of the will’s contents if the proponent can prove the will existed and what its terms were. The court may rely on a properly authenticated copy, witness testimony, or other clear and convincing evidence of the will’s contents and of proper execution.

How courts prove a lost or destroyed will:

• Testimony from attesting witnesses who recall the will’s signing and the document’s terms.
• Copies of the will (drafts, photocopies, electronic copies) accompanied by testimony explaining how the copy was made and why the original is missing.
• Corroborating documents, such as letters, beneficiary statements, or bank records that reflect the testator’s testamentary intent.
• Affidavits from the person presenting the will explaining the original’s loss and describing its contents and authenticity.

Rhode Island’s probate court requires reliable proof before admitting a will when the original cannot be produced. The court balances the risk of admitting a false document against giving effect to the testator’s true intentions.

Procedure to follow in Rhode Island:

1. Contact the probate court in the city or town where the decedent lived to learn local filing requirements.
2. Prepare a petition to probate the will (often filed by a nominated executor or an interested party). If the original is missing, disclose that fact and state how the proponent will prove the will’s contents.
3. Gather evidence: witness affidavits, certified copies, emails or drafts, and any correspondence showing the testator’s intent.
4. File supporting affidavits and copies with the petition and give notice to interested parties as required by Rhode Island probate rules.
5. Attend the probate hearing. The judge will decide whether the submitted proof is sufficient to admit the will or whether a presumption of revocation applies.

If a copy is admitted: When a copy (electronic or paper) is admitted because the original was lost without proof of revocation, the probate division may treat the copy as the will for distribution purposes. The court may attach conditions or require additional proof if credibility concerns exist.

If the court finds revocation: If the court concludes the testator intentionally destroyed the will, the will is treated as revoked. In that case, the estate will be distributed under a prior valid will (if one exists) or under Rhode Island’s intestacy rules (the default rules for distributing property when there is no valid will).

Where to read Rhode Island statutes: Rhode Island’s laws on wills and probate are in Title 33 of the Rhode Island General Laws. You can review the statutes and related probate rules at the Rhode Island Legislature website: https://www.rilegislature.gov/Statutes/TITLE33/. For court-specific instructions and local forms, visit your county or city probate division (Rhode Island Family Court – Probate Division information on the Rhode Island Judiciary site).

Hypothetical example: Suppose Maria made a signed will in 2018 leaving her house to her niece. After Maria’s death, no original will is found; a neatly printed electronic copy exists on her computer and her two attesting witnesses remember signing and witnessing the document. If the witnesses testify consistently about the signing and the computer copy is authenticated, a Rhode Island probate judge may admit the copy and carry out Maria’s wishes. If, however, evidence shows Maria burned the original while telling someone she wanted the will revoked, the court would likely find revocation and deny admission of the copy.

Helpful Hints

• Act quickly: report a missing will to the probate court and gather evidence before documents or witness memories fade.
• Collect copies: search email, personal cloud storage, and devices for electronic copies; locate drafts, bank or insurance beneficiary forms, and funeral instructions that reflect testamentary intent.
• Get witness affidavits: ask attesting witnesses to sign sworn statements about the will’s execution and contents.
• Document searches: check safe deposit boxes, attorney or bank file cabinets, and the decedent’s home for hidden originals.
• Presume destruction matters: if the document was intentionally destroyed, prepare to show evidence the testator did not intend revocation if you want the will admitted.
• Hire a probate attorney: contested or complex situations (family disputes, ambiguous evidence, or high-value estates) usually benefit from counsel familiar with Rhode Island probate practice.
• Keep clear records: if you are drafting or storing a will, retain copies and inform the executor where originals and copies are kept.