What to do with a Lost Original Will in New York.

For most things in life the original is better than its copy. In the context of wills and estate probate, the original is generally required. So, when may the heirs offer a copy of someone’s will to probate in New York?

In New York, a copy of the orignal will may be offered to probate if the administrator or executor can establish that: (1) the will was not revoked; (2) execution of the will was proved in the manner required for the probate of an original will; >and (3) all provisions of the will are clearly and distinctly proven by each of at least two credible witnesses or by a copy of the will proved to be true and complete. See New York Surrogate Court Practice Act § 1407.

Surrogate courts are not going to absolutely accept a copy for probate without strong proof of each of the foregoing elements because the law generally presumes that if there was no original, it was revoked by the person who died. That is, a will that is “shown to have existed,” and was in the testator’s possession at the time of their death, that will is presumed destroyed by the testator and, therefore, revoked. See In Re Evans, 264 A.D.2d 484 (2d Dep’t 1999). By introduction of the statute, the presumption may be “rebutted,” by showing all the three elements. Where the Testator had the last will and testament in her possession at death, the law takes extra steps to protect the presumption that the dead person did NOT intentionally revoke the will. Afterall, the testator cannot explain their desires.

To explain, attempting to have a surrogate admit a copy of a lost will where the testator possessed the will at the time of death is not an easy undertaking. In fact, if the copy is an unsigned draft where the witnesses are identified but their signatures are conformed and do not actually appear on the document, the presumption of revocation is almost impossible to overcome. To establish that the lost will was duly executed, the witnesses to the will must testify that they observed the testator sign the will and that the testator understood the contents and ramifications of the will and possessed the testamentary capacity (i.e. to know what he was doing at the time the will was executed. In addition, the person offering the copy of the will must establish the chain of custody of the original missing document, prove how it was lost or destroyed, and that the testator was unaware that the document no longer existed.

The bottom line is that wills, though they are very important documents, the Testators may want to think twice about physically possessiong the original will. Once you have executed a new will, make sure that you have do not have any copies of any prior wills, destroy the old copy up in front of your witnesses, and help your legatees by doing so!

Remember to always pick an attorney who is knowledgeable in the field of will execution because mistake can frustraite your desire (your will). At Klose & Associates we have supervied hudreds of wills and probated those same wills for families just like yours.