Of course, you can probate a copy of a will. But be prepared to clear a high bar. The problem is that you must demonstrate to the court that the original will was not destroyed or revoked by the decedent during his or her life. New York Surrogate Courts are reluctant to accept a copy unless compelling proof is offered. If a will was known to be in possession of the decedent, whether in his safety deposit box or at home, and now at his death it cannot be located, a presumption is made that the decedent destroyed the original because it no longer reflected his wishes – hence, the inability to locate the original. Judges know and understand that people change their minds, especially when it comes to estate planning. What may have seemed like a good method of distribution at one time, may have no longer been the case. This is why special precautions are taken when the original will cannot be found.

Let’s say, the decedent told you or someone else that in the case of the inevitable, his will is stored in his safety deposit box. Or, you contact the estate attorney who prepared the will, and she is certain that the original was given to the decedent for safekeeping. You turned the decedent’s home around, secured a court order to search his safety deposit box, and even asked relatives if they knew of the document’s whereabouts. And nothing. What is your recourse now?

For a copy of the will to be accepted into probate by New York Surrogate’s Court, the person admitting the copy (aka the proponent) must satisfy the strict requirements of Surrogate’s Court Procedure Act SCPA 1407, which provides as follows:

A lost or destroyed will may be admitted to probate only if:

(a) It is established that the will has not been revoked, and

(b) Execution of the will is proved in the manner required for the probate of an existing will, and

(c) 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.

Satisfactory Proof Showing the Will Was Not Revoked

To satisfy the first requirement, the proponent must demonstrate to the court that the original will was accidentally lost or destroyed during the decedent’s life without his consent, knowledge, or doing. In other words, whatever happened to the original document, the decedent had nothing to do with it.

It may be the case that the document was destroyed by a force of nature. For example, if the original will was destroyed by a hurricane, photographs showing the damage to the decedent’s home where the will was kept can be offered as evidence. Further, testimony by persons with knowledge of the situation, stating that the contents of the home, which consisted of personal and legal documents, were not salvageable, can be compelling enough for the court to admit a copy to probate.

If, on the other hand, the proponent’s position is that the original will is lost, a supporting affidavit by someone or several people attesting to the circumstances and facts, may suffice. An affidavit may state something to the effect that the affiant and the decedent were close, and that the affiant was kept abreast of the decedent’s legal and/or personal affairs. The decedent had informed the affiant that he had made a will, and the deceased never indicated to the affiant that he had revoked or destroyed said document.

The Will Was Properly Executed

To satisfy the second requirement, the proponent must show the will was executed by the deceased in compliance with EPTL 3-2.1. In brief, the decedent was of sound mind, the deceased signed the will, he declared the document to be his last will and testament, and at least two people signed the will as witnesses. When the original instrument is drafted and supervised by an attorney, courts permit the inference that compliance with the statutory formalities were met.

Will Provisions Are Proved By The Witnesses Or By A Copy Or Draft Of The Will

The last prong of SCPA 1407 requires witness testimony as to the substantive provisions of the original will. This requires the witness to have knowledge of the will’s contents. For example, the witness must testify that she knew the deceased left his house to his housekeeper and the rest of his estate to his Pomeranian. Unless the witness was a close friend of the decedent or the attorney draftsman, it is very unlikely for the witness to have knowledge of the will’s contents.

Most witnesses have no idea what the instrument says. Nevertheless, for the to court conclude the will was accidentally lost and not revoked, this requirement must be satisfied.

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If you need assistance filing a copy of a will for probate, or have come across some unforeseen challenges to estate administration, do not attempt to figure it out on your own. Contact a New York estate lawyer or probate attorney immediately. To avoid irreparable harm, consult with a lawyer before you undertake any action. Call us for a free consultation at 646 233-0826.

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