Can a copy of a codicil be accepted if the original is also missing? – NC

Short Answer

Yes, in North Carolina, a copy of a codicil may be accepted even if the original codicil and the original will are both missing, but only through a lost-will probate proceeding. The person offering the copies must prove the original documents were properly signed, show the contents of the will and codicil, explain the loss, and overcome the presumption that the decedent destroyed the originals to revoke them. A thorough search and supporting testimony or affidavits from witnesses or the drafting attorney’s former staff can be important.

Understanding the Problem

In North Carolina probate, the single issue is whether the clerk of superior court can admit a copied codicil when the original codicil is missing and the original will is missing too. The answer usually turns on whether the person offering the papers can prove that the decedent signed valid originals, that the copies accurately show the estate plan, and that the missing originals were not intentionally revoked before death. This is a lost-will question handled in the estate proceeding before the clerk.

Apply the Law

North Carolina allows probate of a lost or destroyed will or codicil, but the burden is high. The propounder must present clear, strong, and convincing evidence of five core points: the decedent died, the original will and codicil were properly executed, the contents can be proved, the originals were lost or destroyed without an intent to revoke, and a diligent search was made in the places where the originals would likely be found. The main forum is the office of the Clerk of Superior Court in the county where the decedent was domiciled at death, and an executor named in the instrument generally has priority to apply for probate, while another interested person may apply if no executor does so within 60 days after death and after giving the named executor 10 days’ notice.

Key Requirements

Due execution: The original will and the original codicil must each have been signed with the formalities North Carolina requires for an attested written will or codicil.
Proved contents: The copies must reliably show what the missing originals said, including any changes the codicil made to the will.
No revocation and diligent search: The propounder must show both a real search for the originals and facts that rebut the usual presumption of revocation when an original last known to be in the decedent’s possession cannot be found at death.

What the Statutes Say

N.C. Gen. Stat. Chapter 28A, Article 2A (Probate of Wills) – sets out who may apply to probate a will and the probate procedures before the clerk.
N.C. Gen. Stat. § 31-11.6 (Self-proved wills) – allows witness affidavits attached to a will to serve as probate evidence if the original instrument can be produced, and those affidavits may still help show due execution in a lost-will dispute.

Analysis

Apply the Rule to the Facts: Here, the family has copies of both the will and a later codicil, has already searched the home thoroughly, and may be able to obtain help from the drafting attorney’s former staff or the attesting witnesses. Those facts matter because copies are good evidence of contents, and witness affidavits or testimony can help prove that the originals were properly executed. The harder issue is revocation: if the originals were last in the decedent’s possession and cannot be found at death, North Carolina usually presumes revocation, so the family will need facts showing the originals were lost, misplaced, or destroyed without the decedent’s intent to cancel them.

The reported estate plan facts may help rebut revocation. A later payable-on-death account that lines up with the copied will and codicil can support the argument that the decedent continued to follow the same plan rather than abandoning it. Cooperation from most or all interested parties also helps the probate process move more smoothly, although agreement alone does not replace the required proof.

If the codicil changed who serves as executor or changed gifts to a smaller group of relatives, the clerk will usually want proof of both documents together because the codicil does not stand in isolation from the will it modifies. In practical terms, the propounder should be prepared to show the execution and contents of the will and the codicil, not just the codicil by itself. For related issues about missing originals, see missing and only a copy exists.

Process & Timing

Who files: the named executor, or if that person does not apply, another interested person after giving the named executor 10 days’ notice. Where: the office of the Clerk of Superior Court in the North Carolina county where the decedent was domiciled at death. What: an estate application or petition to probate the lost will and codicil, with the copies attached, plus affidavits or testimony from attesting witnesses, the drafting attorney’s former staff, or other competent witnesses describing execution, contents, and the search. When: the named executor generally has priority to apply first, and another interested person may apply after 60 days after death if no executor has done so.
The clerk reviews the filing and may require sworn testimony, notice to interested parties, and additional evidence about where the originals were kept, who had access, and what search steps were taken. If material facts are disputed, the matter can become contested and take longer.
If the clerk is satisfied by clear, strong, and convincing evidence, the clerk may admit the copies to probate and issue the appropriate estate authority. If the proof falls short, the estate may proceed as intestate unless a valid original or another qualifying record is produced.

Exceptions & Pitfalls

If the originals were last known to be in the decedent’s possession, the court may presume the decedent revoked them. That presumption must be rebutted with facts, not just family agreement.
A copy alone is usually not enough. The propounder should document the search in detail and secure witness affidavits or testimony about signing formalities and authenticity as early as possible.
If the codicil changed the will, offering only the codicil without proving the underlying will can create problems about what remains in effect. Notice to all interested heirs and beneficiaries also matters, because omitted parties can later challenge the probate.

Conclusion

Yes. In North Carolina, a copy of a codicil can be accepted even when the original codicil and original will are both missing, but only if the propounder proves due execution, contents, loss, diligent search, and lack of revocation by clear, strong, and convincing evidence. The key practical step is to file the probate matter with the Clerk of Superior Court and submit the copies, search evidence, and witness affidavits promptly, especially if another interested person may need to act after 60 days from death and after giving the named executor 10 days’ notice.

Talk to a Probate Attorney

If a family is dealing with a missing original will and a missing original codicil, our firm has experienced attorneys who can help evaluate the proof needed, the probate filing path, and the timing issues involved. Call us today at 919-341-7055.

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.