SCPA 1407: Probating a Lost or Destroyed Will

When a person dies and the original signed will cannot be found — or is found torn, burned, or otherwise damaged — the estate does not automatically pass as though there were no will. New York law provides a specific procedure for admitting a lost or destroyed will to probate. That procedure is set out in Surrogate's Court Procedure Act (SCPA) § 1407, and it is one of the most demanding proceedings in the Surrogate's Court. The petitioner must overcome a legal presumption that the missing will was revoked, prove that the will was properly signed and witnessed, and prove every provision of the will with a high degree of precision.

This page explains what SCPA 1407 requires in plain language, walks through each statutory element, provides a worked example, and outlines the procedural steps, timing, and common pitfalls in a lost will proceeding.

What SCPA 1407 Says

SCPA 1407 provides that a lost or destroyed will may be admitted to probate only if three conditions are met:

1. It is established that the will has not been revoked (SCPA 1407(1));
2. Execution of the will is proved in the manner required for the probate of an existing will (SCPA 1407(2)); and
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 (SCPA 1407(3)).

All three elements must be satisfied. Failing any one of them means the will cannot be admitted, and the estate will pass either under an earlier valid will or, if none exists, by intestacy under EPTL 4-1.1 to the decedent's distributees (closest surviving relatives).

Element One: Proving the Will Was Not Revoked

The Presumption of Revocation

This is almost always the decisive battleground. Under long-standing New York law, when a will was last known to be in the testator's own possession and cannot be found after death, a presumption arises that the testator destroyed the will with the intent to revoke it. This presumption exists because EPTL 3-4.1 permits a testator to revoke a will by physically destroying it — burning, tearing, cutting, cancellation, obliteration, or other mutilation — with revocatory intent. If the testator had the will and it is now gone, the law assumes the most likely explanation is deliberate revocation.

The presumption is rebuttable, but the petitioner carries the burden of overcoming it with adequate proof. Evidence that courts have found relevant includes:

• The will was never in the testator's possession. If the original was held by the drafting attorney, a bank, or the Surrogate's Court itself (wills may be filed for safekeeping under SCPA 2507), the presumption never attaches. This is the single strongest position a petitioner can occupy.
• The will was lost or destroyed after the testator's death, or destroyed during life but without the testator's knowledge or consent. A will destroyed by someone other than the testator, without the testator's direction, is not revoked.
• A specific innocent explanation for the loss — a house fire, flood, move to a nursing home during which papers were discarded, or documented theft.
• Declarations of continued testamentary intent. Statements by the decedent shortly before death consistent with the terms of the missing will (for example, telling family members that the estate was going to a named beneficiary) tend to negate revocatory intent.
• Lack of access by the testator, or access by a person adversely affected by the will. If a disinherited relative had access to the decedent's papers before or after death, courts weigh that in assessing whether the testator or someone else caused the disappearance. Note, however, that suspicion alone does not rebut the presumption; the petitioner still needs affirmative proof.

Interaction with EPTL 3-4.1

Revocation under EPTL 3-4.1 requires both a physical act and revocatory intent, performed by the testator or by another person at the testator's direction and in the testator's presence. Partial physical revocation is not recognized in New York — a testator cannot revoke a single clause by crossing it out. This matters in destroyed-will cases: if a will is found with markings or a torn page, the question is whether the physical condition reflects an act of complete revocation by the testator or damage from another source.

Element Two: Proving Due Execution

SCPA 1407(2) requires that execution be proved "in the manner required for the probate of an existing will." That means the petitioner must establish compliance with EPTL 3-2.1: the testator signed at the end of the will (or someone signed at the testator's direction and in the testator's presence), the testator signed or acknowledged the signature in the presence of each attesting witness, the testator declared the instrument to be a will (publication), and at least two attesting witnesses signed within thirty days of each other.

Proof typically comes from:

• Testimony of the attesting witnesses, examined under SCPA 1404. If a witness is dead, incompetent, absent from the state, or cannot be found with due diligence, SCPA 1405 permits probate on the testimony of fewer witnesses, or on proof of the handwriting of the testator and witnesses together with other facts sufficient to prove the will.
• Testimony of the attorney who supervised execution. When an attorney supervises the execution ceremony, New York courts apply a presumption of regularity — an inference that the statutory formalities were followed.
• A copy showing an attestation clause and self-proving affidavit. A complete attestation clause on a photocopy is prima facie evidence of due execution and can carry significant weight when witnesses' memories have faded.

Element Three: Proving the Contents of the Will

SCPA 1407(3) offers two alternative routes, and the petitioner needs only one:

Route A: A Copy or Draft Proved True and Complete

This is by far the most common route in modern practice. A photocopy, conformed copy, or attorney's retained draft may be used, but the petitioner must prove it is true and complete — that it accurately reflects every provision of the executed original. The drafting attorney's testimony, the law firm's file, word-processing records, and the attorney's execution memo are the usual proof. An unsigned draft can suffice if the attorney testifies that the executed will conformed to the draft without changes.

Route B: Two Credible Witnesses to the Contents

Where no copy exists, all provisions must be "clearly and distinctly proved by each of at least two credible witnesses." Each witness must independently establish the contents — general recollections that "everything went to the children" will not do. This route rarely succeeds for a will of any complexity, which is why attorneys routinely retain copies and execution records.

A Worked Example

Consider the following illustration. A decedent dies owning a Queens home worth $750,000, brokerage assets of $220,000, and bank accounts of $80,000 — a gross estate of $1,050,000. Her 2016 will, drafted and executed under attorney supervision, left the entire estate to her niece, who cared for her for the last decade, and expressly disinherited her two estranged brothers. The original will was kept in the decedent's apartment. After death, the niece cannot locate it; only the attorney's photocopy, bearing the signatures, attestation clause, and self-proving affidavit, survives in the law firm's file.

The stakes are stark. If the lost will is admitted under SCPA 1407, the niece takes the full $1,050,000 (less debts and administration expenses). If it is not, the decedent dies intestate, and under EPTL 4-1.1 the two brothers — as the nearest distributees — split the estate at $525,000 each, while the niece, not being a distributee, takes nothing.

Analyzing the elements:

• Contents (SCPA 1407(3)): Easily satisfied. The photocopy, authenticated by the drafting attorney as a true and complete copy of the executed original, meets the statute.
• Due execution (SCPA 1407(2)): Satisfied through the attesting witnesses' SCPA 1404 testimony, reinforced by the attestation clause and the presumption of regularity from attorney supervision.
• No revocation (SCPA 1407(1)): This is the fight. Because the original was last in the decedent's possession, the presumption of revocation attaches. The niece would need evidence such as: the decedent's statements in her final months reaffirming that "everything goes to you"; proof that the decedent's apartment was cleaned out by a building superintendent who discarded papers before the family could search; or proof that one of the brothers had a key and entered the apartment after death. If the niece can show only that the will once existed and now cannot be found, the petition fails and the brothers inherit.

Procedure in Surrogate's Court

A lost will proceeding follows the ordinary probate framework of SCPA Article 14, with additional proof requirements:

1. File the probate petition. The petition is filed in the Surrogate's Court of the county where the decedent was domiciled (SCPA 205), under SCPA 1402. The petition must disclose that the original will cannot be produced, attach the best available copy, and plead the facts supporting each SCPA 1407 element. The certified death certificate and the filing fee (set by SCPA 2402 on a sliding scale based on the gross estate — for an estate of $500,000 or more, the fee is $1,250) accompany the petition. Many courts require a separate affidavit detailing the search for the original: where the decedent kept papers, who searched, when, and what was found.
2. Serve process on all necessary parties. Under SCPA 1403, citation must issue to the decedent's distributees (who would inherit if the will is denied probate), any executor or beneficiary under a later will on file, and other interested persons. Because a lost will proceeding is inherently contest-prone, distributees who are adversely affected frequently appear and object.
3. SCPA 1404 examinations. Before filing objections, any party adversely affected may examine the attesting witnesses and the attorney-drafter. In a lost will case, these examinations probe not only execution but also custody of the original — who held it, when it was last seen, and who had access.
4. Objections and discovery. Objections under SCPA 1410 may raise the SCPA 1407 elements themselves (revocation, execution, contents) as well as conventional grounds such as lack of testamentary capacity, undue influence, and fraud. Full discovery follows under the CPLR.
5. Hearing or trial. Even in an uncontested case, the court will not admit a lost will on the papers alone unless the record satisfies SCPA 1408, which obligates the Surrogate to be satisfied of the genuineness of the will and the validity of its execution before admitting any will. Courts commonly require live testimony from the attorney-drafter and attesting witnesses. Contested cases may be tried to the Surrogate or, on demand, to a jury under SCPA 502.
6. Decree and letters. If the petition succeeds, the court admits the will as established by the copy or testimony, and issues letters testamentary to the nominated executor (subject to SCPA 707 eligibility). If it fails, the court denies probate, and an administration proceeding under SCPA Article 10 follows.

Timing and Deadlines

• No fixed statute of limitations bars a probate petition, but delay is dangerous in a lost will case. Witnesses die or forget; attorney files are destroyed under record-retention schedules; the decedent's home is emptied and re-let. Petitioners should begin the search and file promptly.
• Citation return date: the return date is set by the court, and service deadlines run backward from it (generally at least 10 days before the return date for personal service within New York, with longer periods for service outside the state under SCPA 307).
• SCPA 1404 examinations must generally be completed, and objections filed, within the time fixed by the court — typically 10 days after completion of the examinations, unless extended.
• Preliminary letters under SCPA 1412 may be sought so an estate fiduciary can secure assets while the lost will contest is pending — often essential where real property or a business needs immediate attention.

Common Pitfalls

• Assuming the photocopy is enough. A copy solves only the contents element. Petitioners routinely underestimate the presumption of revocation, which the copy does nothing to rebut.
• Failing to document the search. Before filing, conduct and record a thorough search: the home, safe deposit boxes (a court order under SCPA 2003 permits a search of a decedent's safe deposit box for a will), the drafting attorney's office, and the Surrogate's Court will-safekeeping files under SCPA 2507.
• Overlooking who held the original. Establishing that the attorney — not the testator — retained the original defeats the presumption entirely. This single fact often decides the case, so obtain the attorney's file and closing letter early.
• Vague witness testimony on contents. Where no copy exists, two witnesses must each prove all provisions clearly and distinctly. Generalities fail.
• Ignoring prior wills. If the lost will is denied probate, an earlier will may still be valid. Note that under EPTL 3-4.6, revoking a later will does not automatically revive an earlier one; the analysis of which instrument governs can become layered, and all instruments should be disclosed to the court.
• Spoliation and access issues. If a party suspects an adverse relative destroyed the original, that theory must be supported by evidence of access and opportunity — courts do not admit lost wills on speculation alone.

Related Statutes

• SCPA 1407 — proof of lost or destroyed will
• SCPA 1408 — court's independent duty to inquire into genuineness and validity
• SCPA 1404, 1405, 1410 — witness examinations, unavailable witnesses, objections
• EPTL 3-2.1 — formal execution requirements
• EPTL 3-4.1 — methods of revocation
• EPTL 4-1.1 — intestate distribution if probate is denied
• SCPA 2003, 2507 — safe deposit box search; will filed for safekeeping

Lost and destroyed will proceedings under SCPA 1407 turn on evidence assembled quickly and presented precisely — the difference between admitting a will and an unintended intestacy is often a single fact about who last held the original. Attorney Albert Goodwin represents petitioners, beneficiaries, and objectants in lost will proceedings and related contested probate matters in the New York Surrogate's Courts.

Related resources on this site: probating a copy of a will, how to find a will.