In Wisconsin, a lost, destroyed, or otherwise unavailable will can still be admitted to probate, but the process is stricter than for an original will. A will is treated as “lost” when the original cannot be found after death, was destroyed without a valid revocation, or is otherwise unavailable. If the original was last known to be in the testator’s possession and cannot be found, courts generally presume the testator revoked the will by destruction, and the proponent must overcome that presumption.
To admit a lost will, the proponent must prove by clear and convincing evidence three things: valid execution, the contents of the will, and that the will was not revoked. Valid execution requires proof that the testator properly signed and that the will was witnessed in compliance with Wisconsin law. Contents can be shown through copies (photocopies or drafts), the attorney’s file drafts, witness testimony, notes, or other reliable secondary evidence. Non‑revocation requires rebutting the presumption that the will was destroyed with intent to revoke, which may be shown by evidence that the will was lost accidentally, statements by the decedent that the will remained in effect, evidence of access or custody by others, or proof the decedent lacked intent to revoke. Wisconsin imposes a heightened evidentiary standard of clear and convincing evidence on execution, contents, and non‑revocation, which is higher than a preponderance of the evidence.
These cases are generally handled in formal, not informal, probate. The process typically involves filing a petition for formal probate of a lost will, providing notice to interested persons, and presenting evidence at a court hearing so the court can determine validity, contents, and lack of revocation. Courts are cautious and will not “reconstruct” a lost will unless the evidence is very reliable, to prevent fraud and ensure enforcement of the decedent’s true intent. If the proponent cannot meet the burden, the will is not admitted; the estate is then distributed under a prior valid will (if one exists) or under intestate succession rules.
If you would like to discuss this matter more thoroughly, please reach out to our Madison Wisconsin Estate Planning attorneys. We are here to help!