Written by attorney Neil Kuchinsky

Establishing and Probating a Lost Virginia Will When You Don't Even Have a Copy of It !

Sound impossible? It generally is - but I have found a procedure that has worked in some rare circumstances here in Virginia. I first learned about this very obscure method when studying for my admission as a Solicitor before the Supreme Court of England and Wales. It requires petitioning the appropriate Virginia Circuit Court for the establishment of what is called a "fiat copy" of the will in question - meaning the creation of a new, written copy of what the will must have said by way of judicial fiat, or decree. Here is one factual situation where this legal strategy worked for my clients:

A husband and wife properly executed their last wills in the presence of their attorney and witnesses several decades ago. The provisions of their wills were identical, except for the corresponding names of each testator;

When the deceased husband died several decades later, the widow examined her late husband's original will and saw that it had not been altered, amended, or obliterated in any way, and her memory was refreshed that it was identical to her will, except for the corresponding testators’ names; i.e., it was a mirror image of her own will. The daughter of the deceased husband also examined the will following his death, and too saw that it was not altered, canceled, or obliterated in any way, and recognizing the signature as that of her father.

The widow brought the deceased husband's will to the office of the attorney who had originally drafted it ( now an elderly and infirm man), so that he could qualify as its executor. After leaving the original will at the attorney’s office, it was never seen again; somewhere amongst the files of his fifty-year long practice, or perhaps in a pile of papers placed too close to a wastepaper basket, it had been lost. Even more regrettably, no photocopy of the will could be found. At least the elderly attorney was willing to testify that the husband’s will had been lawfully and properly executed and witnessed at his office long ago; and that it appeared he had lost it at some point after the widow brought it back to his office.

Now, I certainly had experience establishing the content of lost wills when there was at least a photocopy to put into evidence, but proving a will that no longer existed on paper was quite a new matter. Reaching back into memory, I remembered coming across the phrase “fiat will" when studying for my U.K.solicitors’ bar exam – something I had never seen used before in U.S. law, although it was derived from an old common law concept, which Virginia courts often accept:

Code of Virginia, § 1-200. The common law.

The common law of England, insofar as it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth, shall continue in full force within the same, and be the rule of decision, except as altered by the General Assembly.

Establishing a “fiat copy" of a will means to establish it by judicial decree, and that is exactly what we had to try to do. To my knowledge, this is the first time this was to be attempted in Virginia.

On behalf of the widow and daughter, I petitioned the Circuit Court to order the Clerk of Court to admit to probate a will newly-typed in my office, but obviously unsigned and unexecuted by the deceased, as a substitute for what we believed to be the husband’s will. On the day of our trial, we put into evidence the original of the wife’s will, and her and the elderly attorney’s testimony that the husband’s will was a “mirror image" that had not been changed or altered; that the signature was also recognized by the daughter; that the original had been given to the attorney and then lost by him; and that the new, unexecuted “will" accurately represented the content of the one that had disappeared without any copies being made.

To our great relief and satisfaction, the court made all the findings and rulings of law we requested: that the original and valid will of the deceased husband had been lost while in the possession or control of a third party, but that the newly reconstructed, unsigned “fiat copy" of that will was to be treated as a true and faithful copy. The final decree stated, in relevant part:

“It is ORDERED that a true copy of the document labeled ‘Fiat Copy’ be and hereby is established as the lost will of the deceased husband, and shall be accepted by the Clerk of this court as valid for qualification of an executor, for probate, and for recording in all public records of this court, and regarded in every respect and provision as if it were the deceased husband’s original will."

Remember, your attorney’s creativity and experience can be major factors in the successful resolution of your difficult will and probate problems.

Additional resources provided by the author

Harrison on Wills and Administration for Virginia and West Virginia

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