The Presumption of Revocation
The law starts with a straightforward assumption. If the original will was last known to be in the possession of the person who created it, and it cannot be found after death, the copy is presumed unnecessary because the testator likely destroyed the original on purpose. This is not a final ruling. It is a presumption that can be challenged.
If an original will that was last seen in the possession of the testator cannot be found after the testator's death, the testator is presumed to have destroyed the will with the intention of revoking it. This presumption may be rebutted by a preponderance of the evidence.
A.R.S. § 14-3415(A)To overcome this presumption, family members or their experienced attorney must show that the testator did not intend to revoke the will. Evidence might include testimony from people who saw the will recently, or proof that it was stored in safe deposit boxes or another location where it could have been lost or damaged.
Proving the Contents of a Missing Will
Even after establishing that the will was valid and unrevoked, the contents still need to be proved. The superior court provides two paths depending on what is available.
If a will is found to be valid and unrevoked and the original will is not available, its contents can be proved by a copy of the will and the testimony of at least one credible witness that the copy is a true copy of the original.
A.R.S. § 14-3415(B)If a photocopy or digital scan exists, one credible witness can confirm that after death the copy is a true copy of the original. That witness does not need to be someone who signed the will. If no copy exists at all, the standard rises to clear and convincing evidence, and the court sets forth the will's contents in its order.
This statute also addresses wills originally probated in other states. For families with property in multiple states, keeping copies of all estate planning documents in a secure, easily accessible location is one of the simplest ways to avoid these complications entirely.