In order to probate a will, i.e. to have it accepted by the Court as the decedent’s Last Will and Testament, New York States Surrogate’s Courts require the original Will to be turned over to the Court. What happens, however, if the original Will is lost or destroyed? Can a copy of the Will take the place of the original, or do the wishes of the decedent disappear with the original Will? What if no copy is found – is all hope lost? The answer, as always, depends on the facts.
The rules (SCPA 1407) allow for a lost or destroyed will be to be admitted to probate if all three of the following conditions are met:
- The Will has not been revoked.
- The Will has been property executed.
- Either there is a copy or draft of the Will or, if there is no copy or draft of the Will, then all of the provisions of the Will must be proved by at least two witnesses.
Let’s take a look at each of these three requirements individually:
Will Not Revoked:
New York law presumes that if someone had a Will in their possession which can’t be located, that the Will was revoked. If the Will was not in the possession of the individual, there is no such presumption. That is part of the reason, as we discussed in an earlier article, it is recommended that clients leave the original Will with their lawyer. If the Will is lost or destroyed while in the possession of an attorney (or anyone other than the person who made the Will), the Will is much more likely to be admitted to probate.
Proper execution (spelled out in EPTL 3-2.1) requires that an individual sign the Will in front of at least two witnesses, declaring that this is his Will, and that the witnesses sign their names at the end of the Will in the presence of the individual, at his request. Due execution can be established through testimony by the witnesses and/or the attorney who drafted the will. Additionally, an attestation clause at the end of the Will and/or witness affidavits may also be used as proof of proper execution.
Copy of Will OR Testimony by two witnesses:
If the aforementioned requirements can be established, the court can accept the terms of the copy (or unsigned draft) of a Will if the original can’t be found. More surprisingly, even if a copy or draft can’t be located, if at least two witnesses testify to the terms of the lost Will, the court can accept their testimony to probate the Will. That means that, even if no copy is found, verbal testimony can be accepted as evidence of the contents of the lost Will.
Courts have discretion on whether to accept lost Wills or not. It is very important that clients keep their documents in a safe place. While probating a lost Will is possible, it is risky, expensive, time consuming, and unnecessary if proper precautions are observed.
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