When a loved one dies and the original will cannot be found, the family may know a will existed, and may even remember its terms, yet without the signed original the path to probate becomes considerably harder. We represent executors, beneficiaries and family members in locating, reconstructing and proving lost or missing wills under New York law.
A missing will case turns on the Surrogate’s Court Procedure Act and on the strict evidentiary standard New York applies when an original testamentary document cannot be produced. Whether the will was misplaced, accidentally destroyed, withheld by an interested party, or simply cannot be located despite a diligent search, the question is the same: can the copy be admitted, and what proof will it take. Our companion page on lost wills covers the same proceeding from the executor’s side.
Missing Wills Under New York Law
The Surrogate’s Court generally requires the original signed will before it will admit a document to probate. When the original cannot be located, New York law presumes that the testator destroyed it intending to revoke it. This presumption of revocation is powerful, but it is not insurmountable. With the right evidence, a copy of a missing will can be admitted to probate under SCPA 1407.
SCPA 1407 sets out three things the petitioner must establish: that the will was duly executed in accordance with New York’s formal execution requirements; that the will has not been revoked by the testator; and that the provisions of the will are clearly and distinctly proved by at least two credible witnesses, or by a copy or draft of the will proved to be true and complete. Each element carries its own evidentiary burden, and that burden rests entirely on the party seeking to probate the missing will. Our work is assembling the documents, witness testimony and legal argument needed to overcome the presumption and secure admission.
Common Scenarios Involving Missing Wills
Missing will cases arise in a variety of circumstances. The situations we see most often are these.
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Lost or Misplaced Originals
A testator may have kept the original in a safe deposit box, a home safe or a filing cabinet, and the family cannot find it after death. Sometimes the document was left with an attorney whose firm has since closed, or stored somewhere known only to the decedent.
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Accidental Destruction
Fires, floods and other accidents destroy original documents. When the destruction was unintentional and happened without the testator’s involvement, the law permits the will to be proved through secondary evidence.
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Suppression or Concealment by an Interested Party
In some cases a family member or other person who would benefit from intestacy has destroyed or hidden the original. Establishing this through circumstantial evidence is difficult but achievable.
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Wills Drafted but Never Found After Death
Family members may know the testator executed a will, because they witnessed the signing or hold a copy, yet the original cannot be located despite a thorough search of the decedent’s records and possessions.
Overcoming the Presumption of Revocation
The presumption that a missing will was revoked applies most strongly when the will was last known to be in the testator’s own possession. To rebut it, we gather evidence that the testator did not intend to revoke. The kinds of proof that tend to carry weight are set out below.
| Evidence | What it tends to show |
|---|---|
| Statements by the decedent shortly before death affirming the will and its terms | The testator still regarded the will as in force |
| The testator’s relationship with the named beneficiaries up to the time of death | No change of heart that would explain a revocation |
| Estate planning correspondence and the drafting attorney’s file | The will’s existence, contents and continued relevance |
| Proof that the original was stored outside the testator’s exclusive control | The presumption applies with less force or not at all |
| Evidence of accidental loss or destruction | The original disappeared for a reason other than revocation |
| Evidence that an interested party had access to the original and a motive to destroy it | A third party, not the testator, is responsible for its absence |
How much proof is needed depends on the circumstances, and Surrogates across New York exercise considerable discretion in weighing it.
Proving the Contents of a Missing Will
Even after the presumption of revocation is overcome, the petitioner must prove the precise contents of the will. A photocopy, a conformed copy or the attorney’s file copy of the executed will is the strongest evidence. When no copy exists, the contents must be established through the testimony of at least two credible witnesses with personal knowledge of the will’s provisions.
We work with the drafting attorney when one can be found, with the witnesses to the execution, and with anyone else who has personal knowledge of the terms. We also search law firm files, court records and electronic storage for any preserved version of the document.
The Surrogate’s Court Process for Lost Wills
Petitioning to probate a lost or destroyed will requires a more involved court process than standard probate. The key steps are these.
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File the petition
A petition for probate of a lost will is filed in the Surrogate’s Court of the county where the decedent was domiciled at death.
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Give notice
Every interested party must be notified, including those who would inherit under intestacy if the will were not admitted.
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Document the search
A diligent search for the original must be conducted and the efforts described to the court.
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Present the witnesses
Witness testimony establishes due execution and the contents of the will.
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Respond to objections
Parties who oppose admission of the lost will may file objections, which must be answered and, if necessary, tried.
Lost will proceedings are frequently contested, particularly where the difference between probate and intestacy changes who inherits. We are prepared to litigate these matters through trial in the Surrogate’s Court when that is what it takes.
Steps to Take If You Believe a Will Is Missing
If you suspect that a deceased relative’s will has been lost, destroyed or concealed, prompt action matters. We recommend the following.
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Search thoroughly
Go through the decedent’s home, safe deposit boxes and personal records.
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Contact the drafting attorney
Ask the attorney who may have drafted the will for any retained copies or notes.
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Check with the Surrogate’s Court
Find out whether the will was deposited with the court for safekeeping during the testator’s lifetime.
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Talk to people who knew
Family members, friends and advisors may have knowledge of the will’s existence and terms.
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Preserve everything
Keep every copy, draft and piece of correspondence relating to the will.
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Get counsel early
Consult a New York attorney experienced with SCPA 1407 petitions as soon as possible.
Contact a New York Missing Will Attorney
A missing will does not necessarily mean a missed inheritance. With timely action and the right proof, it is often possible to honor the decedent’s wishes and see the estate pass to the intended beneficiaries. We handle lost will petitions under SCPA 1407 in Surrogate’s Courts throughout New York, including contested proceedings, and we can evaluate your situation and tell you what the evidence will need to show. Call the Law Offices of Albert Goodwin at 212-233-1233 or email [email protected] for a confidential consultation.
