Mr. Goodwin is everything you want in an attorney: professional, honest, thorough, and genuinely caring. He always explains things clearly, so I understood exactly what was happening and what to expect next. His attention to detail and persistence really stood out. Looking back, I feel lucky to have found him. He guided me through the whole process expertly, and I deeply appreciate all his hard work. Would definitely recommend him to anyone needing legal help.
Call Today:
212-233-1233
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 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 The petitioner must overcome a legal presumption that the missing will was revoked, prove that the will was properly signed and witnessed, and prove every provision of the will with a high degree of precision.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, 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or destroyed will may be admitted to probate only if three conditions are met: it is established that the will has not been revoked (SCPA 1407(1)); execution of the will is proved in the manner required for the probate of an existing will (SCPA 1407(2)); and all of the provisions of the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 passes either under an earlier valid will or, if none exists, by intestacy under EPTL 4-1.1 to the decedent’s distributees, the closest surviving relatives.
| Statutory Element | What the Petitioner Must Show | Typical Evidence |
|---|---|---|
| SCPA 1407(1): no revocation | The will was not revoked by the testator during life | Proof the will was not last in the testator’s possession; proof of loss or accidental destruction; evidence of continued testamentary intent |
| SCPA 1407(2): due execution | The will was executed in compliance with EPTL 3-2.1 | Testimony of attesting witnesses; attorney-drafter testimony; attestation clause on a copy; self-proving affidavit |
| SCPA 1407(3): contents | Every provision of the will, clearly and distinctly | A photocopy or conformed copy proved true and complete, or testimony of at least two credible witnesses to the contents |
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. The presumption exists because EPTL 3-4.1 permits a testator to revoke a will by physically destroying it, by 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. The strongest position a petitioner can occupy is that 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. Nearly as good is proof that the will was lost or destroyed after the testator’s death, or destroyed during life without the testator’s knowledge or consent. A will destroyed by someone other than the testator, without the testator’s direction, is not revoked.
Courts also weigh a specific innocent explanation for the loss, such as a house fire, a flood, a move to a nursing home during which papers were discarded, or documented theft. Declarations of continued testamentary intent help as well: 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. Finally, 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. Suspicion alone does not rebut the presumption, though; 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.” 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 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. The attorney who supervised execution is the other key witness: when an attorney supervises the ceremony, New York courts apply a presumption of regularity, an inference that the statutory formalities were followed. A copy showing a complete attestation clause and self-proving affidavit is prima facie evidence of due execution and carries 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, meaning 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
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.
Contents (SCPA 1407(3)) are 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)) is 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)) 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 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.
- 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. It must disclose that the original 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.
- 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.
- 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 execution and custody of the original: who held it, when it was last seen, and who had access.
- 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.
- 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.
- 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
| Deadline | Rule |
|---|---|
| Filing the petition | 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, and the decedent’s home is emptied and re-let. Begin the search and file promptly. |
| Citation return date | Set by the court; 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 and objections | 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 | Available under SCPA 1412 so a fiduciary can secure assets while the lost will contest is pending; often essential where real property or a business needs immediate attention. |
Common Pitfalls
| Mistake | Why it matters |
|---|---|
| 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. See how to find a will. |
| 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. Under EPTL 3-4.6, revoking a later will does not automatically revive an earlier one, so the analysis of which instrument governs can become layered; all instruments should be disclosed to the court. |
| Spoliation and access theories without proof | 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
| Statute | Subject |
|---|---|
| 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. We represent petitioners, beneficiaries and objectants in lost will proceedings and related contested probate matters in the New York Surrogate’s Courts.
The Original Will Cannot Be Found?
We handle lost-will probates: locating attesting witnesses, overcoming the presumption of revocation, and proving contents through the draftsperson’s copy. If you only have a photocopy of the will, do not assume the estate must pass by intestacy. Call us at 212-233-1233 or email [email protected] before anyone files.
Related resources on this site: probating a copy of a will, how to find a will, lost will attorney.
About the Author
Albert Goodwin Esq. is a licensed New York attorney with over 18 years of courtroom experience. His extensive knowledge and experience make him well-qualified to write authoritative articles on a wide range of legal topics. He can be reached at 212-233-1233 or [email protected].
