Issues in Probating a Copy of a Will in New York City

Probating a copy of a will is possible but you must overcome a strong common-law presumption that the will has not been revoked.

If the person who made the will was the last person known to have the will in their possession and the will was not found in their possession upon their death, the will is considered either destroyed or lost and there is a strong presumption that they revoked their will. Matter of Estate of Gray, 143 A.D.2d 751 (1988); In re Evans, 264 A.D.2d 482 (1999).

If the person who made the will left it with the attorney draftsman for safekeeping, and the original will cannot be located upon their death, then there is no presumption that the will has been revoked.

If the original has been lost, destroyed or cannot be found, but you still have a copy of the will, you may be able to probate a copy of the will under SCPA § 1407. Under this section, a lost or destroyed will may be admitted to probate only if:

1. It is established that the will has not been revoked
2. Execution of the will is proved in the manner required for the probate of an existing will
3. All of the provisions of the will are clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of the will proved to be true and complete

The second requirement is quite easy to prove. A will is duly executed under EPTL § 3-2.1 if the testator signs the will in front of at least two attesting witnesses, declaring that the instrument he is signing is his will. The witnesses must also sign the will at the testator’s request, attesting the testator’s signature within 30 days from the testator’s signing. The supervision of an attorney in the execution of the will and the presence of an attestation clause in the will gives rise to presumptive evidence of due execution.

The first requirement can easily be proven if the testator did not keep the original copy of the will, but instead left it with the attorney. If the testator did not have the original copy of the will and instead, it was the attorney who lost the will, there is no presumption that the testator revoked the will, if such will could not be found in his possession upon death.

Even if the testator had possession of the original will, if such will was proven to be destroyed due to force of nature, i.e., destroyed during Hurricane Sandy, then the presumption that the will had been revoked has been overcome and a copy of the will can be admitted for probate. Matter of Certoma, Jr., 55 Misc.3d 908 (2017).

The last requirement is usually proven by affidavits of the attesting witnesses that the copy offered for probate is a true and complete representation of the original will. Matter of Certoma, supra.

If the court denies a copy of the will for probate, then the estate of the decedent will be distributed in accordance with New York’s intestacy laws under EPTL § 4-1.1. Problems may arise when dispositions in the will are different from distributions under intestacy laws.

Usually, those who stand to inherit if the decedent died without a will (called distributees or heirs-at-law) will object to the probate of a copy of a will, if they stand to inherit more as distributees.

If you have issues regarding wills, would like to offer a copy of the will for probate, or would like to object to a copy of the will being offered for probate, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].

References:

SCPA § 1407

EPTL § 3-2.1

EPTL § 4-1.1

Strategies for Overcoming the Presumption of Revocation

The presumption that a missing will was revoked by the testator is the central challenge in lost-will probate. Successful proponents typically use one or more of these strategies:

• Show the testator did not have possession. If the original was kept with the attorney, in a safe deposit box, or with another third party, the testator was not the last person known to have possession and the presumption doesn't apply.
• Show non-revocation circumstances. Evidence that the testator continued to refer to the will, told family members it existed, or otherwise treated it as still in effect.
• Show physical destruction by other causes. Fire, flood, theft, or other circumstances that explain the disappearance without the testator's involvement.
• Show that revocation would be inconsistent with the testator's expressed wishes. The lost will reflected the testator's clear and consistent intent, making revocation implausible.
• Identify the actual location. Sometimes wills thought to be lost are actually misplaced and can be found with thorough investigation.
• Present multiple copies. If multiple copies were made, the existence of a copy makes destruction of all copies less likely.

The Two-Witness Requirement for Lost Wills

SCPA § 1407 requires that lost wills be proved through "at least two credible witnesses or by a copy or draft of the will proved to be true and complete." This requirement has been interpreted to allow either:

• Two witnesses who can testify about the will's contents from personal knowledge (typically the attesting witnesses to the will execution), or
• A copy of the will proved to be true and complete (through attestation, affidavit, or testimony).

The witness route works when witnesses remember the will's contents. The copy route works when an authentic copy exists. Some cases use both routes simultaneously for added security.

Drafting Attorney Records

The attorney who drafted the will is typically the best source of evidence for lost-will probate:

• The attorney's file likely contains a copy of the will.
• The attorney's notes typically document the execution.
• The attorney's billing records may corroborate the timing.
• The attorney's correspondence may show the testator's continued reliance on the will.
• The attorney often supervised the execution and can testify about formalities.

When a will is lost, the first step should be contacting the drafting attorney (if known) and requesting their complete file. Attorneys typically retain files for at least seven years, sometimes much longer.

Attesting Witness Testimony

The attesting witnesses (the two people who signed the will at execution) can testify about:

• The fact of the execution ceremony.
• The testator's apparent capacity and lack of duress.
• The execution formalities (publication, signature, attestation).
• The substance of the will's terms if they read it or had it read to them.

Locating the attesting witnesses can be challenging years after the execution. Some courts allow alternative evidence (deposition transcripts, affidavits) when witnesses are unavailable due to death or disability.

Objections to Probate of a Copy

Distributees who would inherit more by intestacy than under the will typically object to lost-will probate. Common objections:

• The will has been revoked under the presumption from its disappearance.
• The copy presented is not authentic.
• The original was modified before being lost.
• The witnesses' recollections are unreliable due to passage of time.
• The drafting attorney's file is incomplete or unreliable.
• The testator made a later will that revoked the lost one.

Each objection requires specific evidence. The proponent of the lost will must address each objection raised.

The Hurricane Sandy and Disaster Exceptions

The Matter of Certoma case established that destruction of a will by force of nature (such as Hurricane Sandy) overcomes the presumption of revocation. The principle extends to other circumstances:

• Wills destroyed by fire at the testator's residence.
• Wills lost during a move when other documents were also misplaced.
• Wills lost when the testator's safe deposit box was destroyed or its contents lost.
• Wills destroyed by neglect of caretakers or family members rather than by the testator.

The common theme is that the destruction was not by the testator's own act with intent to revoke. Establishing the non-testator cause overcomes the presumption.

Best Practices for Will Storage

The lost-will problem is preventable through careful storage practices:

• Attorney's office. Many attorneys retain client wills in their office vault. This protects against loss at home and provides chain of custody.
• Bank safe deposit box. Provides physical security, though family must know about the box and have access after death.
• Home fireproof safe. Acceptable if the safe is truly fireproof and family members know the combination.
• Court filing. New York allows lifetime filing of wills with the Surrogate's Court for a fee, providing the highest level of security.
• Multiple originals. Some practitioners execute multiple original wills, retaining one at the attorney's office and giving one to the testator.

The testator should ensure that the executor knows where to find the original after death. Wills hidden so successfully that no one can find them cause the same problems as wills that are actually lost.

If the Lost-Will Petition Fails

If the court denies probate of a lost will, the estate passes by intestacy under EPTL § 4-1.1. Consequences include:

• Distribution to the deceased's heirs-at-law under the statutory rules rather than the will's beneficiaries.
• Loss of specific bequests to friends, charities, or non-relative beneficiaries.
• Application of statutory rules about executor selection rather than the will's nominee.
• Loss of any trusts or other structures the will would have created.
• Loss of guardian nominations for minor children.

These consequences often substantially differ from what the testator intended. The cost of lost-will litigation is justified by the difference between probate and intestacy outcomes for substantial estates.