Probating a Copy of a Will in New York City

Probating a copy of a will is possible, but the likelihood of success is far from certain. Probating a copy of a will is difficult. If someone’s interest is diminished by that copy of the will, then probating the copy will be even more difficult. And if someone is objecting to the probate of the copy of the will, then the process will be even more difficult. But what if the original will is lost and the only thing left is a copy?

When an attorney creates a will for a client, the attorney sometimes keeps a copy of the executed will and gives the original will to the client. Sometimes the attorney keeps the will and gives the client the copy. Either way, wills can get lost.

Wills can be lost because of fires, floods or other natural disasters, or just be misplaced. An original will may be lost due to no fault of anyone, yet the testator may not even realize that the will was lost in order to make a new one.

A family may wonder what they are to do in a situation such as that one and whether or not the surrogate’s court will accept a photocopy of a will or whether or not the estate will be probated as if the testator died intestate. In fact, a copy can be used to probate a will, but the burden involved in actually proving it represents a true copy of the will and the wishes of the testator can be a challenge.

Under New York law, probating a copy of a will is possible where it is proven that the will was not revoked by the testator, the will was properly executed and the witnesses to the will can testify that nothing is changed or removed from the copy of the will. Depending on the circumstances, this may be difficult to prove. For example, if you are probating a copy of a will that is not a direct photocopy of the executed will, such as can be the case when there is only an indication it was signed but no actual signature, that may not be considered to be good evidence that it was ever a properly executed will.

Also challenging could be finding witnesses to the will to prove that the copy is the same as the will they saw being signed. Those witnesses may be unable to testify for many reasons including being deceased, missing or simply not remembering the details of when the will was executed.

Also presenting a problem in probating a copy of a will could be issues involving fraud. If a will has not been in the hands of an attorney, there could have been ample opportunity for someone to change or remove pages to make the will better reflect an inheritance that would act in their favor.

The complex issues that come up when probating a copy of a will in place of the original are just one of the reasons why it is advisable to use a New York estate attorney when proving a lost will. You can call the Law Offices of Albert Goodwin at (212) 233-1233 or 212-233-1233 and we can discuss the situation with you.

SCPA § 1407: The Statutory Framework for Lost Wills

New York's procedure for probating a lost will is governed by SCPA § 1407. The statute requires the proponent to prove three elements:

1. The will has not been revoked.
2. Its execution is proved in the manner required for a will found at the testator's death.
3. All of the will's provisions 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).

Each element has its own evidentiary requirements. Failing any element means the lost will cannot be admitted to probate.

The Presumption of Revocation

The hardest element is usually the first: showing that the will was not revoked. New York recognizes a presumption that a will last in the testator's possession but missing at death was revoked by the testator. The presumption is based on the common-sense observation that testators who want their wills to take effect do not typically destroy them.

The proponent of a lost will must rebut this presumption with evidence showing that the will was lost (not destroyed by the testator) or that the testator's intent to keep the will in force continued until death. Evidence used to rebut the presumption includes:

• Statements by the testator confirming the will remained in force.
• Evidence that the will was kept somewhere other than in the testator's exclusive possession.
• Evidence of fire, flood, theft, or other accidental loss.
• The continuing consistency of the testator's stated intentions with the lost will.
• Lack of any prior will or revoking document.

Where the will was in someone else's possession (the drafting attorney's office, a safe deposit box, a trusted family member's safe), the presumption of revocation does not apply. Loss from those locations is more readily attributed to accident than to revocation.

Proving Due Execution

The second element requires the proponent to prove that the will was properly executed under EPTL § 3-2.1. Without the original, the proof comes from:

• Witness testimony. The will witnesses testify to the formalities they observed at the signing.
• Drafting attorney testimony. The attorney who supervised the signing testifies to the procedure followed.
• The self-proving affidavit. If the copy includes a copy of the self-proving affidavit, the affidavit may itself prove due execution.
• Standard practice evidence. Where the drafting attorney can testify to consistent execution practices, that supports the inference that the formalities were followed.

Proving the Contents

The third element requires proof of the will's contents. The traditional standard required testimony from two credible witnesses to the will's exact language. Modern practice allows a copy of the will to substitute, provided the copy is shown to be a true and complete copy of the executed will.

A photocopy with all of the signature areas filled in (the testator's signature, the witnesses' signatures, the notary's seal and signature) is generally accepted as evidence of the will's contents. A draft or working copy that does not show signatures may be more difficult to use. The court will evaluate the available evidence in light of the surrounding circumstances.

Common Scenarios for Lost Wills

Lost will situations come up in recurring patterns:

• The drafting attorney retained the original but the attorney has died or retired, and the firm no longer has the records.
• The testator stored the will at home and the home was damaged by fire or flood.
• The testator moved repeatedly during life and the will was lost in moves.
• The testator's estate file is incomplete and the will cannot be located despite diligent search.
• A family member who knew where the will was stored has died, and the location was not communicated to the executor.
• The testator entered a nursing home and personal property was sent to storage where it was lost.

Each scenario has its own evidentiary challenges. Diligent search of all reasonable locations is the first step before proceeding with a lost will petition.

The Search Requirement

Before petitioning to probate a lost will, the proponent should conduct a thorough search for the original. Reasonable search efforts typically include:

• The testator's home, with attention to safes, file cabinets, desk drawers, and other likely storage locations.
• The drafting attorney's office (the attorney may have retained the original).
• Safe deposit boxes the testator may have rented.
• Storage units and other off-premises storage.
• The Surrogate's Court where the testator may have deposited the will during life.
• Friends and family members who may have been entrusted with the document.

The petition should describe the search efforts in detail. A perfunctory search is not adequate. The court wants to see that the proponent made a serious effort to find the original before resorting to the copy procedure.

What Happens If the Lost Will Procedure Fails

If the lost will cannot be admitted to probate, the result is generally that the testator is treated as having died intestate. The estate is distributed according to EPTL § 4-1.1 (the intestacy statute). This may produce a substantially different distribution than the lost will would have created, with the closest heirs taking in proportions different from what the testator may have wanted.

This consequence is one of the reasons careful storage of original wills is so important. The cost of safekeeping is minimal. The cost of losing the will can be enormous.