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 718-509-9774 and we can discuss the situation with you.