When someone dies and the original of their will cannot be found, the family faces an unsettling question: does the will still count? Under New York law a lost or destroyed will can be admitted to probate, but only if strict standards are met in the Surrogate’s Court. We represent executors and beneficiaries who need a lost will proved, and distributees who have grounds to oppose that petition.
If you believe a will existed but cannot find the original, act promptly. The evidence a lost-will petition depends on, such as witnesses, attorney files and copies, becomes harder to gather with every passing year.
What Is a Lost Will Under New York Law?
A “lost will” is a will that was properly executed during the testator’s lifetime but whose original signed document cannot be found after death. It usually happens in one of a few ways: the original was misplaced or accidentally destroyed; it was kept in a safe deposit box or some other place the family cannot get into; the testator moved and it was lost in the move; the attorney who drafted it retired, died or closed the practice; or a family member, caregiver or other interested person deliberately hid or destroyed it.
Often all that survives is a photocopy, a scanned image, a draft, or someone’s recollection of what the will said. None of these is a substitute for the original, but each can be critical evidence in a lost-will proceeding.
The Legal Standard: SCPA § 1407
Probate of a lost will is governed by Section 1407 of the Surrogate’s Court Procedure Act. Under SCPA § 1407 a lost or destroyed will may be admitted only if the proponent satisfies three requirements. Failure on any one of them means probate is denied and the estate passes by intestacy.
Due execution
The proponent must establish that the will was executed in accordance with EPTL § 3-2.1: the testator’s signature, the presence of two attesting witnesses, and the testator’s declaration that the document was their will.
Rebutting the presumption of revocation
When a will last known to be in the testator’s possession cannot be found after death, New York law presumes the testator destroyed it with the intent to revoke it. The proponent must rebut that presumption with clear and convincing evidence.
Proof of contents
All of the will’s provisions must be 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.
Overcoming the Presumption of Revocation
The hardest part of most lost-will cases is rebutting the presumption that the testator destroyed the original on purpose. The kinds of evidence that do that are set out below.
| Evidence | Why it matters |
|---|---|
| The will was kept outside the testator’s exclusive control | If the original was with an attorney or in a third party’s safekeeping, the testator was not the last person known to have it, and the presumption does not arise in the same way. |
| The testator kept speaking of the will | Testimony that the testator continued to speak favorably of the will or its beneficiaries, or affirmed near death that the will existed and was valid, is inconsistent with an intent to revoke. |
| A consistent estate plan | Records showing that the testator’s estate-planning intent never changed make a deliberate revocation implausible. |
| Someone else had motive and opportunity | Proof that a person who stood to gain could have removed or destroyed the document points to a cause other than the testator. |
| An accidental cause | Evidence of a break-in, fire, flood or similar event explains the disappearance without any act by the testator. |
Who Files, and Who Must Be Served
The petition to probate a lost will is usually filed by the executor named in the copy or draft. If that person is unwilling or unable to serve, a beneficiary, family member or other interested party may petition. The petition is filed in the Surrogate’s Court of the county where the decedent was domiciled at death.
Every distributee, meaning every person who would inherit if there were no will, must be served with process, because each of them has standing to contest the proceeding. When the distributees would take more if the will is denied probate, they commonly become the adversaries in the litigation. We represent people on either side of that line.
Common Disputes in Lost Will Proceedings
Lost-will cases are frequently contested because the stakes are high and the evidence is often circumstantial. Distributees typically argue that the testator deliberately destroyed the will. Opponents may dispute whether the copy accurately reflects the executed original. Even when the contents are proved, they may challenge the underlying will for lack of capacity or undue influence. Competing versions of the decedent’s estate plan sometimes surface. And the attesting witnesses must be found and brought to testify, often years after the execution.
What We Do in a Lost Will Case
The work begins with investigation: a thorough search for the original, including contacting prior attorneys, banks, safe deposit facilities and storage providers. We then gather the evidence the statute requires, locating witnesses, obtaining drafts and copies, securing attorney files, and collecting communications that reflect the testator’s intent. We draft and file the SCPA § 1407 petition in the appropriate Surrogate’s Court and prepare the attesting witnesses, the drafting attorney and other knowledgeable people to give sworn testimony.
If the petition is contested, we handle discovery, depositions and trial before the Surrogate. Where a family settlement agreement would resolve the dispute more efficiently than a trial, we negotiate one. For the related problem of proving a copy when the original is gone, see our page on probating a copy of a will.
Steps to Take If You Believe a Will Is Lost
If a deceased relative had a will that cannot be located, take these steps promptly.
- 1
Search thoroughly
Go through the decedent’s home, files and personal effects, and check safe deposit boxes, home safes and storage units.
- 2
Contact the decedent’s attorneys
Any lawyer the decedent used for estate planning may hold the original, a copy or the execution file.
- 3
Gather every copy, draft and reference
Photocopies, drafts and correspondence that mention the will are all evidence of its contents and of the testator’s intent.
- 4
Identify the witnesses
Find out who witnessed the execution and where they can be reached.
- 5
Avoid statements or filings that could hurt the case
Do not commence an administration proceeding or make representations about the estate plan until you have advice on how they will affect the lost-will petition.
- 6
Get counsel early
Talk to a New York lost will attorney as soon as possible, while witnesses and records are still available.
Talk to Us
Probating a lost will in New York demands factual investigation and careful proof, and defending against a lost-will petition demands the same. Whether you need a missing will admitted or you are a distributee who intends to oppose one, call 212-233-1233 or write to [email protected]. We will review the circumstances, explain your rights under New York law and set out a clear strategy.
