A lost will under New York law is a will that was known to have existed, and known to have not been revoked, but the original of the will cannot be found.
Can A Lost Will Be Admitted To Probate In New York?
Yes, New York’s Surrogate Court Procedure Act section 1407 permits a copy of a lost will to be admitted to probate under certain conditions. Section 1407 states:
A lost or destroyed will may be admitted to probate only if
1 – It is established that the will has not been revoked, and
2 – Execution of the will is proved in the manner required for the probate of an existing will, 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.
Therefore, in order for a lost will to be admitted to probate in New York, the proponent of the lost will must establish that the will was not revoked.
Second, the execution of the will must be proved in accordance the requirements of EPTL section 3-2.1.
Third, all of the provisions of the will must be proven by two credible witnesses OR by a copy or a draft of the will proved to be true and complete.
How Do You Prove That A Lost Will Was Not Revoked By The Testator?
One of the requirements to admit a New York lost will to probate is that the proponent must establish that the will was not revoked by the testator. New York law presumes that if a testator had the Will in their possession and it cannot be located, that the will has been revoked by the testator. Many New York probate lawyers will recommend that the original of a testator’s will remain in the office of the lawyer for safekeeping to prevent a lost will situation.
One way to establish that the will was not revoked is to show facts and circumstances evidencing that the will was fraudulently destroyed during the testator’s lifetime.
When Is A New York Will Considered “Fraudulently Destroyed?”
A will is considered “fraudulently destroyed” if it simply appears that it was destroyed by someone other than the testator and without his authorizing or directing the destruction. In re Will of Fox, 9 N.Y.2d 400 (1961). Therefore a will that was accidentally destroyed or thrown away would fall under the umbrella of “fraudulently destroyed.”
While the presumption of revocation may be overcome with circumstantial evidence, mere speculation and suspicion are not enough to rebut the presumption of revocation. Matter of Scollan, 161 A.D. 3d 1577 (2018).
The presumption of revocation is:
[U]naffected by evidence that decedent’s attorney retained a copy of the will at his office and that decedent never advised him that she intended to revoke the will. Nor may the presumption be overcome with hearsay accounts of decedent’s statements concerning her testamentary intentions.
