Written by attorney David A. Kubikian

What Happens if Your Last Will & Testament is Lost (New York)?

Believe it or not, in New York, it is still possible to admit a will for probate even where the original will is lost and/or where no signed copy exists.

Whether trying to admit a draft or copy of a will or where there is no physical draft at all, SCPA Sec. 1407 provides that the proponent or person petitioning for the probate of a will must:

(i) Provide proof that the will was duly executed.

(ii) Provide proof, either by submitting a true and complete copy/draft of the will or by the testimony of two credible witnesses, all of the provisions of the will. In practice, this is usually done by the former rather than the latter.

(iii) Lastly, the proponent must show that the will that was allegedly executed was never revoked. Remember, in New York, there is a presumption that a missing will that was last in the possession of the testator was destroyed by that testator prior to his/her death.

The last of these three prongs is the hardest for proponents to prove as they must prove a negative. Testimony from dis-interested people with knowledge of the testator's estate plans and property casualty in the testator's home can provide enough evidence to show that the will, while missing, still represented the testator's desires at his death.

Additional resources provided by the author

See SCPA Sec. 1407.

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