In this electronic age of copy machines, fax machines, and scanners we often lose sight of the distinction between an original document and one that has been copied, faxed, or scanned. However, at times, especially in estate planning, there is no substitute for an original.
J. Douglas King’s family found out just how important an original can be. In 1994, Douglas executed a will leaving everything to his second wife, Laurel, with whom he had two minor children. In addition, he also had three adult children from his first marriage. He made provisions for these adult children, but only if his wife predeceased him.
Between 1994 and 1997, Douglas and Laurel’s wealth grew rapidly to $8 million. Douglas decided to rethink his will and consulted an attorney, bringing in a copy of his will. Pursuant to his instructions, the attorney prepared an amendment or “codicil” to the will, changing some minor provisions. The attorney retained the copy of the 1994 will and the original 1997 codicil. In 2000, Douglas died in a motorcycle accident and the original will could not be found. The copy of the will and the original codicil were offered to the probate court.
However, Douglas’ children from the prior marriage contested the admission of the copy, alleging that he must have destroyed it, intending to revoke it. If Douglas had intentionally destroyed the original will, the destruction would have revoked it and his assets would have passed under the laws of intestacy, letting the children from the prior marriage share in his wealth.
A bitter fight ensued, as his adult children brought up that their father and Laurel had repeated marital problems, including a divorce filing that was later withdrawn. Also, they testified that the accountant had told them that their father had told him he had provided for all of his children.
The New Hampshire Supreme Court, citing a state presumption that a missing will indicates revocation, found that it was unclear whether the will was missing because of loss or intentional revocation by destruction. The Court considered the will revoked and ordered the estate distributed pursuant to the laws of intestacy. Therefore, Laurel and each of his children would share in his estate.
This case illustrates how the absence of an original document can dramatically change your estate plan, even if a copy is available. Sinclair Prosser Gasior can help you avoid hidden pitfalls like this that can affect your estate plan and advise on safekeeping of your documents.