The Presumption of Revocation in Illinois

The Presumption of Revocation in Illinois

A house in winter, Probate Presumption of RevocationAs the world progresses through the digital era, an increasing number of files and important documents are being copied and stored paperlessly. While this might seem like a more organized, safer and more efficient means of preserving paperwork, providing a digital copy may not be legally sufficient for estate documents- namely wills. In fact, an Illinois probate attorney cannot stress enough the importance of properly storing all original estate planning documents.

Unfortunately, original documents sometimes become lost or accidentally destroyed in house fires, floods or other disasters, and a digital copy is the only things survivors have access to. When this happens, there is a legal presumption that the original documents must have been revoked. Digital copies of wills and other estate planning documents may not be entirely worthless, however.

When Original Documents Are Not Available

In some situations, the court may allow the admission of copies of wills into probate, although convincing them to do so can be challenging. Under the Illinois Probate Act, methods for revoking a will include tearing, burning or obliterating the document. When there is no original available, proving that the will was not effectively revoked can be difficult. The presumption of revocation can, however, be overcome when there is clear and convincing evidence provided to the court that the document was not intentionally destroyed by the testator. Possible examples of situations that may provide sufficient proof to the court include:

  • When the deceased did not have possession of the original document and there is no evidence of revocation.
  • When there is evidence that the will was stored in a home or office that suffered extensive fire or flood damage.
  • Loss or destruction of the will occurred after the decedent’s death.

Additionally, if the will simply follows Illinois intestacy law, and all heirs are in agreement that the digital copy should be accepted, the court may allow the document to be admitted to probate without a hearing.

 

Avoiding the situation of lost documentation in its entirety is always going to be the best bet. Storing all estate planning documents in a secure, fire and flood-proof location where they can be found by successors is an excellent place to start. If an individual discovers that his or her own original will has been lost or accidentally destroyed, new estate planning documentation should be executed as soon as possible to help prevent heirs with having to overcome the presumption of revocation.

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