Suggestions for Completing the Declarations for a Lost or Destroyed Will

1. The Task
2. How to Accomplish the Task
3. Who to Select to Make the Declarations (ie, the “Declarants”)
4. Examples of “Will Remains Valid” Declaration
5. Examples of “Authentication” Declaration

The Task

What is required is to provide facts and circumstances that support the making of the two conclusions that we want to prove:

• “Will Remains Valid” Declaration: Decedent’s lost Will has not been revoked; and
• “Authentication” Declaration: The document that we have is a true and correct copy of Decedent’s lost Will.

How to Accomplish the Task

The task is accomplished by providing one fact or circumstance after another that, taken together, forces the Court to draw the factual conclusions stated about.  Remember, however:

• The witnesses (Declarants) provide the facts and circumstances (ie, you should provide one fact after another); and
• The Court draws the conclusions (ie, you should minimize explanation, justification, rationalization, conclusion).

Who to Select to Make the Declarations (ie, the “Declarants”)

Two issues:

1. Personal Knowledge.  A substantive requirement: All witnesses who testify in Court (as the Declarants will need to do if anyone objects) are required to have “personal knowledge” of the facts and circumstances that they are testifying (declaring) to.  Not that somebody told them, or they read it in a book, or they heard it on the radio or TV, or they think that it sounds reasonable, or this is what they would like to have happened, or this is what they think the Court wants to hear, or this is what they think is “right,” or “fair,” or “just,” etc.  Personal knowledge means:
   • I saw what I am describing, or
   • I heard what I am describing, or
   • I smelled what I am describing, or
   • I felt what I am describing, or
   • I thought what I am describing, or
   • I did what I am describing, etc, etc, etc.

   In other words — I am describing my own personal experience, my own perceptions, thoughts, feelings, actions, etc — I perceived this, I thought that, I felt whatever, I did blah-blah-blah and so forth  …  Lots of “I’ statements about one’s own personal experience.  Therefore, you need to select as the persons to provide your Declarations those persons who have direct personal knowledge of the facts and circumstances that will lead to Court to draw the necessary two factual conclusions.  Furthermore, in making their Declarations, those persons should provide a series of statements describing one of their experiences after another, ie, “I did this, then I saw that.  Etc.”  To tie the knot, your author may include a final, “wrap-up” statement of the Declarant’s ultimate belief — “What I think this all means is ….”

2. The Deadman’s Statute.  A procedural requirement: All of Decedent’s possible heirs and beneficiaries are potential adverse parties whose testimony is potentially inadmissible, due to the Deadman’s Statute.  Consequently, if at all possible, those persons you select to provide any Declaration should be a disinterested party — one who has nothing to gain or lose whether or not Decedent’s lost Will is admitted to probate.

Examples of “Will Remains Valid” Declaration

Here, we are trying to prove a negative — that something didn’t happen, namely, that Decedent didn’t revoke the Will.  In order for Decedent to have revoked the Will:

• Decedent would have had to have been alive, and
• Decedent would have had to have obtained access to the Will.

We will proceed to “prove the negative” by mounting fact after fact that from the time of the execution of the Will to Decedent’s death, Decedent did not access the Will.  And if Decedent did not access the Will, Decedent could not have revoked it (at least not by physical means — he/she could have revoked it by making a later Will).

First possibility:

I am Decedent’s surviving spouse.  My spouse and I both made our respective Wills on [Date] at our lawyer’s office.  At the end of the meeting, our lawyer handed us the originals of the two Wills and told us that he/she would be sending us a letter summarizing our estate plans and enclosing copies of all the documents we had just signed.  After my spouse and I arrived home from the meeting, my spouse handed me his/her Will and asked me to file them in our “Estate Planning” file in the file cabinet in our hall closet, which I did.  My spouse and I were together throughout the period from when I put the Wills in the file cabinet through and after the time we went to bed that evening.  I did not, and I did not see him, go near the file cabinet after I deposited the Wills in it. That night, my spouse unexpectedly died in his/her sleep.  The next day, our house caught fire and was totally destroyed, including all of its contents and the Wills.  To the best of my knowledge, Decedent died believing that his/her new Will was safely deposited in our file cabinet at home, which I believe it was but for the fire the next morning.

I was in our home and in the vicinity of the file cabinet containing Decedent’s Will from the time I placed the Will there through the time our home, including the file cabinet, was destroyed by fire the following day.  Throughout that period, I never saw my spouse approach the file cabinet and have no experience whatsoever that he/she did.  To the contrary, while we were going to bed that night, he/she said to me, ‘I’m glad and feel reassured that we’ve finally done our Wills.  I put that off far too long, but now it’s done, and I’ll sleep better for it tonight.’  Lastly, I believe that all of Decedent’s property was his/her share of our community property, all of which I would inherit as his/her only heir if his/her lost Will is not established.  Decedent’s lost Will provides for certain gifts to persons other than myself, so it is not in my direct financial interest for me to support the establishment of Decedent’s lost Will as I am now doing by providing this Declaration.  I am making this Declaration because I know that my spouse’s Will was important to him/her, I love and miss him/her, and it’s the truth and the right thing to do.  [Note: This testimony is subject to the Deadman’s Statute.  The following is not.]

Second (better) possibility:

I was Decedent’s personal assistant.  In that capacity, my responsibilities included making appointments for him/her with others, both in and out of his/her office, supervising all of his/her correspondence and other documents, and cataloguing and filing them.  Several months ago, Decedent asked me to make an appointment for him/her to see his/her lawyer about his/her estate plans, which I did.  My daily log shows that Decedent’s first appointment for his/her estate planning was on [Date] and the last of a series of appointments following that one was on [Date].  I remember Decedent returning to the office an hour or so after that appointment, handing me a series of documents, and asking me to catalog and file them, and that one of those documents was his/her Will dated that date.  I catalogued and filed the documents among Decedent’s personal files in the office.  I have attached a copy of the pertinent portion of that catalog to this Declaration, showing that those documents were filed and catalogued on that date.  Several months later, we moved our offices, including all of its files.  A week or so ago, I received a telephone call from Decedent’s lawyer’s office asking me to mail them the original of Decedent’s Will.  Upon attempting to locate it, I discovered that it was missing from Decedent’s personal files in our office, as was the entire file of Decedent’s estate planning documents.  I have no knowledge of where that file or Decedent’s Will may be.  After I placed the Will in the file at Decedent’s request, I have no memory either of my accessing the file or Will thereafter, of Decedent having done so, or of Decedent having said anything to me about the file or his/her Will.  I am left to presume that somehow, the file including Decedent’s Will was inadvertently misplaced during our office move.

Besides what I have stated above, after I discovered a week or so ago that Decedent’s estate planning document file was missing, I checked our office document catalog for the disposition of Decedent’s estate planning documents including the Will.  I did this because in my experience, Decedent was a very organized person for whom it was important that things were in their proper place and accounted for, and I would believe it highly unlikely that he/she would have removed any document, including the Will, without noting that in our office document catalog.  In working with him/her over many years, I never knew him/her to have removed documents, other than for reviewing them in our office in the normal course of business, without either returning them to their catalogued file, noting their removal from the document catalog, or asking me to do so. Consequently, had Decedent removed the Will him/herself, I would have expected that he/she would have entered its removal in our office document catalog.  I have attached to this Declaration a true and correct copy of the pertinent portion of our office document catalog, which shows that according to the catalog, Decedent’s estate documents, including the Will, remain located in his/her estate planning file where I put them months ago.  I can only conclude that they were mislaid during our move.

Examples of “Authentication” Declaration

First possibility:

I am Decedent’s surviving spouse.  In my companion Declaration, I stated that at the end of my spouse’s and my meeting with our lawyer to sign our estate planning documents, our lawyer handed us the originals of the two Wills and told us that he/she would be sending us a letter summarizing our estate plans and enclosing copies of all the documents we had signed that day.  Several days after my spouse’s death and our house fire, I received that letter from our lawyer, who I haven’t been able to contact, because I am sure he/she would have a copy of Decedent’s Will.  I have attached to this Declaration a copy of that letter, including the copy of Decedent’s Will that was enclosed with the letter.  The copy of Decedent’s Will attached to that letter is the copy of Decedent’s lost Will attached to Petitioner’s Petition for Probate of Lost Will.”  [Note: This testimony is subject to the Deadman’s Statute.  The following is not.]

Second (better) possibility:

I am Decedent’s personal attorney.  I consulted with Decedent about his/her estate plans, prepared his/her estate documents, oversaw their execution, handed him/her the original of his/her Will following its execution and attestation and my making copies of it for my files, and several days thereafter sent him/her a letter, including a copy of his/her Will, summarizing his/her estate plans.  I have attached to this Declaration a copy of that letter, including a copy of the Will.  I have compared the copy of the Will that I attached to my letter with the purported copy of Decedent’s lost Will which Petitioner has attached to his/her Petition for Probate of Lost Will.  To my eyes, the two copies are indistinguishable.  To the best of my knowledge, the purported copy of Decedent’s lost Will attached to Petitioner’s Petition is a true and correct copy of Decedent’s Will that I prepared and saw Decedent execute and the witnesses attest on [Date].