Detailed Answer

This article explains how Wisconsin courts handle situations where the original last will and testament cannot be produced because it was lost or damaged while being mailed to the courthouse. It assumes no prior legal knowledge and focuses on the practical steps and legal principles that matter.

Key legal principles

Under Wisconsin law, a will’s provisions are not automatically invalid just because the original document is lost or damaged in transit. Courts look to two main issues:

• Proof of execution: Was the will properly signed and witnessed when it was created?
• Intent to revoke: Was the will intentionally destroyed or cancelled by the testator (the person who made the will)? Mere loss or accidental damage does not prove intent to revoke.

You can review Wisconsin’s statutes on wills for the formal rules about execution, revocation, and admission to probate: https://docs.legis.wisconsin.gov/statutes/statutes/853

How courts typically handle a missing or damaged original

If the original will cannot be produced at the time of probate because it was lost or seriously damaged in the mail, the probate court will usually allow admission of secondary evidence (for example, a copy of the will and testimony) if the person seeking probate can establish by clear and convincing evidence both:

1. That the will was duly executed (the testator signed it and the necessary witness formalities were satisfied); and
2. That the original is not being withheld by someone attempting to frustrate probate (i.e., the original’s absence has an innocent explanation—such as being lost in the post).

When destruction could mean revocation

Wisconsin law treats deliberate destruction with intent to revoke differently from mere loss or accidental damage. If a court finds the testator destroyed or altered the original will on purpose with the intent to revoke, the will is revoked. But accidental damage or loss while mailing does not show revocation by itself. The court will look at the surrounding facts and evidence to determine intent.

Examples of typical outcomes

Hypothetical examples:

• If a lawyer mailed the original will to the courthouse and the Post Office confirms the package was lost, a probate court will often admit a true copy of the will if witnesses (or a self-proving affidavit) can verify the will’s execution and the court is satisfied the original was not intentionally destroyed.
• If only a badly torn or partially burned original arrives, the court may allow testimony and other evidence to reconstruct the testator’s intentions and admit the will (or parts of it) if the evidence shows the will was validly executed and not revoked.

Relevant court process

The person who wants the will admitted (usually the named executor or a beneficiary) files a probate petition with the local circuit court’s register in probate. If the original is missing, the petition should explain that fact and attach any copies and supporting affidavits or witness declarations. The court schedules a hearing if necessary and decides whether the available evidence suffices to admit the will despite the absence or damage of the original.

Practical steps to take right away

1. Preserve all proof of mailing and delivery attempts. Keep tracking numbers, receipts, postal inquiries, and loss or damage reports.
2. Contact the attorney who prepared or handled the will. They may have a copy, a scanned version, or file notes that help prove execution.
3. Locate any copies—typed copies, drafts, electronic files, or scanned versions. These can be important secondary evidence.
4. Identify and contact attesting witnesses. Witness testimony about seeing the testator sign the will is often crucial.
5. If the will included a self-proving affidavit (a sworn statement signed by the testator and witnesses at execution), obtain a copy of that document. A self-proving affidavit makes it easier to admit a will when the original is missing.
6. File a probate petition promptly with the circuit court (register in probate) in the county where the decedent lived. Explain that the original is missing or damaged and attach the available proof and affidavits.
7. Bring evidence about the chain of custody—who had the will, when it was mailed, and what happened afterward. Clear timelines and records help the court evaluate whether the original was lost innocently or withheld.

What evidence helps the most

• Original or certified copies of the will (if any).
• A self-proving affidavit executed with the will.
• Testimony or sworn affidavits from the attesting witnesses who saw the testator sign the will.
• Attorney’s file notes, drafts, or a scanned copy from the lawyer’s files.
• Postal tracking and loss/damage reports or courier records showing the package was lost or damaged in transit.
• Any contemporaneous statements by the testator about keeping or changing the will (to show lack of intent to revoke).

Common complications and how courts resolve them

Contests are the main complication. Interested parties (heirs or beneficiaries) may dispute the authenticity of a copy or argue the will was revoked. In contested cases, the court will hold evidentiary hearings. The standard the court typically applies for admitting a lost or destroyed will is high (often described as clear and convincing evidence) because admitting a will without an original raises the risk of fraud.

Helpful Hints

• Do not assume loss equals revocation. Loss in the mail is not the same as intentional destruction by the testator.
• Act quickly. Promptly gather records, contact witnesses, and file the probate petition to preserve rights and evidence.
• Keep copies of everything and make them available to the court and other interested parties.
• If you mailed the original, get a written statement or report from the postal service or courier describing what happened.
• Check whether the will included a self-proving affidavit. That document significantly simplifies admission if the original is missing.
• Expect the court to require testimony and documentary proof if the original is not available. Prepare witnesses with dates, places, and concrete recollections of the execution.
• Consider hiring an attorney experienced in probate litigation if the case is contested, the evidence is thin, or the estate has significant assets.