Detailed Answer — When a Will Is Lost or Destroyed under West Virginia Law

Short answer: In West Virginia, a will that is lost or destroyed can still be admitted to probate, but the person seeking probate must prove the will’s contents and show it was not revoked. The court requires strong evidence—typically witness testimony or a reliable duplicate—to admit a lost or destroyed will. See West Virginia statutes on decedents’ estates for the general framework: West Virginia Code — Chapter 41 (Decedents’ Estates).

How courts treat lost or destroyed wills

State law treats two different situations differently:

• Will missing but not intentionally destroyed by the testator: If the original will cannot be located because it was lost or misplaced, the proponent (the person asking the probate court to admit the will) can ask the court to admit a copy or to recreate the will’s terms by proof of its contents. The proponent must convince the court the will existed and was not revoked.
• Will destroyed with intent to revoke: If the testator burned, tore, crossed out, or otherwise destroyed the will with the intent to revoke it, most courts (including West Virginia courts following general probate principles) treat that physical destruction as presumptive revocation. The burden then shifts to the proponent to present convincing evidence that the testator did not in fact intend to revoke the instrument.

What evidence the court typically requires

To prove the contents of a lost or destroyed will, West Virginia courts will usually require clear and convincing evidence. Types of evidence include:

• Testimony of attesting witnesses: Witnesses who signed or saw the will executed can testify about the will’s existence and contents. Their testimony is often the strongest evidence.
• Copy of the will: A complete copy or certified copy can support admission if paired with witness testimony about authenticity and lack of revocation.
• Other documentary evidence: drafts, photocopies, email or cloud-stored files showing the will’s text, or contemporaneous records that match the alleged will.
• Circumstantial evidence: Proof the testator treated the document as their will (e.g., gave copies to their attorney, discussed it with beneficiaries, or made related changes to accounts consistent with the will).

The court weighs these items and decides whether they meet the required standard to admit the instrument despite the original being missing or destroyed.

Burden of proof and presumptions

Generally, the person asking the court to admit the lost will bears the burden of proof. If the will was physically destroyed and the destruction is proved, West Virginia law and widely accepted probate principles presume the testator intended revocation. Overcoming that presumption requires persuasive evidence that the testator changed their mind or that the destruction was accidental.

What happens at a probate hearing

Procedurally, the proponent files a petition for probate (often titled petition to admit will to probate) with the probate court in the county where the decedent lived. The court will:

1. Set a hearing and require notice to beneficiaries and interested parties;
2. Allow admission of witness testimony and documentary evidence;
3. Make a finding whether the will existed, whether the text proved matches the original, and whether the will was revoked intentionally;
4. Decide whether to admit the will as a lost will or deny admission, in which case the estate may pass by intestacy (default state rules) or under a prior valid will if one exists.

Practical outcomes

• If the court admits a lost or destroyed will, the estate is distributed under the terms proved in the will.
• If the court finds the will was revoked, the estate is distributed under intestacy statutes or under any valid earlier will.
• If the proponent cannot meet the burden of proof, interested parties can object and request the court rule against admission.

Hypothetical example

Maria executed a will leaving her house to her niece. The original will was in her safe but could not be found after Maria died. Maria’s attorney has a photocopy; two attesting witnesses remember signing the document and are willing to testify to its contents. Maria’s brother argues Maria must have destroyed the will to revoke it. At the hearing, the niece’s proponent presents the witnesses and the copy; the court finds clear and convincing evidence the will existed and was not revoked. The court admits the will to probate and the house passes according to the proved will.

Where to look in West Virginia law

Key statutory guidance for probate and decedents’ estates in West Virginia appears in Chapter 41 of the West Virginia Code. For the statutory framework and procedures that govern wills, probate process, and estate administration, see: https://code.wvlegislature.gov/41/. For specific local procedures, probate court rules and forms, check the county probate court clerk’s office or the West Virginia Judiciary website.

When to consult an attorney

If you face a lost or destroyed will in West Virginia, consult a probate attorney promptly. An attorney can help locate the original, interview and prepare witness affidavits, collect supporting documents, prepare the petition to probate a lost will, and represent you at the hearing. Contested cases can become complex and time-sensitive.

Disclaimer: This article provides general information about West Virginia probate principles and is not legal advice. It does not create an attorney-client relationship. For advice about your specific situation, consult a licensed West Virginia attorney.

Helpful Hints — Practical Steps If a Will Is Lost or Destroyed in West Virginia

• Start a careful search: check home safes, attorney files, bank safe deposit boxes, and personal papers.
• Contact the attorney who drafted the will—lawyers often keep copies or memorialize the will’s terms.
• Find and preserve any copies or drafts (photocopies, emails, scanned files, cloud backups).
• Locate and preserve contact information for attesting witnesses; get signed, notarized affidavits if possible.
• Document circumstances of the will’s disappearance and any facts relevant to possible revocation (e.g., did the testator destroy the will or speak about revoking it?).
• File for probate promptly in the decedent’s county of residence; follow local probate filing rules.
• Notify likely heirs and beneficiaries so they have a chance to appear and raise objections if needed.
• Keep originals of any evidence (copies, emails, affidavits) safe and provide duplicates to the court and counsel.
• Expect that contested cases may require hearings, and plan for the time and cost of litigation if other parties oppose admission.