Under what circumstances can a lost will be admitted to probate?

The Washington Court of Appeals recently held that the executor of a testator’s estate had rebutted the presumption that the testator’s lost will was revoked, where there was an authenticated copy of the will and clear, cogent, and convincing evidence showed that the testator’s attitude towards the beneficiaries of her will had not changed prior to her death. In re Estate of Lanzner, No. 87038-6-I (Wash. Ct. App. Jan. 26, 2026).

When Joan Lanzner died in 2022, her original will, which was executed in 2012, could not be found. An authenticated copy of the lost will had been found in Joan’s apartment by her friend Juanita. The will, which named her biological son, Mark, and her two stepsons, Edward and Robert, as beneficiaries, was admitted to probate. The will did not provide for Joan’s biological daughter, Joni, or a third stepson, Richard. The will named Edward as personal representative.

In February 2023, Joni and Richard filed an action under Washington’s Trust and Estate Dispute Resolution Act seeking to invalidate the will. They asserted that Joan had died intestate (without a will) based on the presumption that a lost will is revoked. The trial court and, on appeal, the Washington Court of Appeals noted that Joan’s original 2012 will had been authenticated and properly executed. Therefore, the only controversy was whether clear, cogent, and convincing evidence supported the trial court’s finding that Joan did not intend to revoke the will, overcoming the presumption that when a will is lost or destroyed, the testator intended to revoke it. According to relevant precedent, the presumption can be overcome by either direct or circumstantial evidence showing the testator’s state of mind, as indicated by the testator’s declarations made after the execution of the will and prior to death.

Based on the testimony of Joan’s family members and Juanita, who was her agent under her power of attorney, the court found that Joan’s favorable attitude toward Edward and Robert did not change prior to her death. Edward and Robert testified that they were friendly with her and visited her periodically, especially before she moved from California to Seattle. Edward briefly lost contact with Joan after she became upset with him because she mistakenly thought he was responsible for moving his father from an apartment she and his father shared to a memory care facility, but the relationship was repaired when Edward visited her and explained that he had not played a part in that decision. The evidence also showed that Joni was estranged from Joan for decades prior to Joan’s death and that Richard had described Joan as being suspicious and temperamental.

Although Joan had crossed out Edward’s, Robert’s, and Mark’s names on a copy of her will and told her agent under a power of attorney that she wanted to donate her assets to a charity, the court noted that this action coincided with Joan’s cognitive impairment associated with her Alzheimer’s disease, as well as a habit she developed in her final years of writing on everything. Joan never met with her estate planning attorney again after executing her will in 2012, and Joni and Richard conceded that there was no indication that Joan had ever executed a valid new will.

Thus, the court found that the record supported the trial court’s finding that Joan’s positive attitude toward Edward and Robert remained unchanged and that the trial court had correctly determined that there was clear, cogent, and convincing evidence overcoming the presumption that Joan had revoked her will. In addition to affirming the trial court’s judgment, the court granted Edward’s request for reasonable attorney’s fees and costs on appeal to be assessed against Joni and Richard.

Read the full opinion here.

In Mississippi, if there is only one heir at law and the same person is also the sole beneficiary of the will, it may be simple to probate a lost will. The law in Mississippi requires that you must present clear and convincing evidence to establish the following: (1) that the testator did validly execute a will; (2) that the testator at that time had testamentary capacity; (3) that the will has been lost or destroyed; (4) what the will provided, and (5) that the will was not destroyed by the testator with the intent to revoke it. Warren v. Sidney’s Estate, 183 Miss. 669, 184 So. 806 (1938).