Definition
A duplicate will is a testamentary instrument executed in two identical copies at the same time, both signed and witnessed with the same formalities, with one copy retained by the testator and the other entrusted to another person for safekeeping. Both copies constitute a single will, not two separate instruments. The practice arose from the practical risk that a single document might be lost, destroyed, or suppressed — the duplicate provided a safeguard against the will failing to reach probate.
A duplicate will differs from a copy or transcript of a will. Each copy in a duplicate will bears original signatures and attestations; a photocopy or clerk's transcript does not.
Common Confusion
DUPLICATE WILL vs. COPY OF WILL: A duplicate will is not a copy in the ordinary sense. Each copy is an original instrument with independent signatures and attestations. A photocopy, certified copy, or engrossed transcript of a will is not a duplicate will and does not carry the same legal standing. Historical sources sometimes use "copy" loosely in this context; researchers should verify whether the document in question was executed as a duplicate original or merely reproduced after the fact.
DUPLICATE WILL vs. CODICIL: A codicil amends or supplements an existing will. A duplicate will is the same instrument in two simultaneously executed originals. They are not interchangeable, though historical records occasionally conflate them when a second document is found alongside the primary will.
Why It Matters in Research
The procedural requirement is the critical research point: in English practice, probate of a duplicate will required both copies to be deposited with the registry of the court of probate. This rule existed to prevent a testator from revoking the will by destroying only one copy while the other remained in circulation — an ambiguity that could otherwise cloud the estate. Researchers working with English probate records from the ecclesiastical courts or the early Court of Probate (post-1858) should expect both copies to appear in the registry file when a duplicate will was proved. If only one copy surfaces in the archive, it may indicate revocation, suppression, or loss — each with different legal consequences.
American practice on this point is less uniform and more sparsely treated in historical sources. Some American jurisdictions followed the English rule requiring both copies for probate; others did not codify the requirement at all, leaving it to case law or judicial discretion. Researchers working in American sources should not assume the English procedural rule applies without checking the applicable state statute or probate court rules for the relevant period.
The revocation problem is a recurring trap. Because both copies form one will, destroying one copy — even intentionally — did not necessarily constitute revocation in all jurisdictions, precisely because the other copy survived. This distinguishes a duplicate will from a single-copy will, where physical destruction by the testator raises a strong presumption of revocatory intent. Researchers tracing revocation disputes in the case law should attend carefully to whether the instrument at issue was a duplicate will or a single original.
Historical Dictionary Support
Black's Law Dictionary and Rapalje & Lawrence are in close agreement, using nearly identical language and focusing entirely on English practice. Both sources define the instrument by its mechanism — two copies executed simultaneously — and both note the probate registry deposit requirement as the governing procedural rule in England. Neither source engages with American jurisdictional variation or the revocation implications in any depth, which reflects the English-law orientation of both dictionaries on this point. Researchers relying solely on these sources will have an accurate picture of English practice but will need to supplement them for American law.
Neither dictionary addresses what happens when the two copies contain discrepancies — an execution error or a divergence in text between the two — leaving that question to the case law.
Jurisdictional Note
English law historically required both copies of a duplicate will to be deposited for probate. American states varied considerably, and many modern American jurisdictions do not formally recognize or specially regulate duplicate wills as a distinct category — treating them instead under general will execution and revocation statutes. The legal consequences of destroying one copy diverge sharply across jurisdictions.