The Oklahoma Bar Journal November 2024

P robate

Lost Wills and the Meaning of ‘Existence’ By David M. Postic

E VERY SINGLE WILL YOU HAVE PREPARED COULD BE DENIED PROBATE. Let that sink in. Even if the will was properly executed pursuant to statute. Even if the testator was com petent and not subject to undue influence, fraud or duress. Even if the testator did not revoke the will after executing it. Even then, the will might be inadmissible.

requires proof of two facts: 1) that the will was ever in existence, i.e. , that it was properly executed by a person with the capacity to do so, and 2) that the will remained in exis tence until the testator’s death. The first of those topics is ground well trod. The second, much less so. There are only a handful of pub lished cases in which Oklahoma courts have discussed the probate of lost wills in any real substance. 5 None of those cases define what it means for a will to be “in existence” within the context of Section 82. And of the two cases decided on the basis of the will’s existence or nonexistence, neither contains analysis that clarifies the meaning of the statutory language. 6 Even Oklahoma Probate Law and Practice – the gold standard in elucidating this area of state law – dedicates barely a sentence to the matter of a lost will’s “existence.” 7 At first blush, whether a will “exists” seems simple. If a will

This is not a rare phenomenon, an exception to the rule. It is the reality of a lost will. With very limited exceptions, a will cannot be given effect unless the original instrument is produced for probate. 1 The law presumes that a testator destroyed their will if the original cannot be found after their death. 2 This presumption is a rebuttable one, but Oklahoma, even more than other jurisdictions, makes the presumption very diffi cult to overcome. Under 58 O.S. §82 (Section 82), the terms of a will may be given effect, even when the original can not be found, 1) if the will “is proved to have been in existence at the time of the death of the testator” or “is shown to have been fraudulently destroyed” during the testator’s life time and 2) if the terms of the will “are clearly and distinctly proved by at least two credible witnesses.” 3 While this statute may seem uncomplicated on the surface, it

leaves a lot in question. What does it mean for a will to be “in existence” at the death of the testator? What does it mean for a will to be “fraudulently destroyed”? Can the two witnesses who must “clearly and distinctly” prove the terms of the lost will refer to a photocopy of the executed will to refresh their recollection? Can the court rely on a photocopy of the lost will to prove its terms in lieu of one or both witnesses? 4 It would take many more pages than I am allowed here to explore all those issues. (Besides, no one wants to read that much about probate procedure.) Instead, this article focuses on the crucial threshold question for probating lost wills: What does it take to prove that a lost will was “in exis tence” at the death of the testator? WHAT IT MEANS FOR A WILL TO BE ‘IN EXISTENCE’ Proving that a will was “in existence” at the testator’s death

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

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THE OKLAHOMA BAR JOURNAL