Dealing With Lost Wills

Some clients may ask, “what happens if we lose the original will; is the court still going to let it be admitted to probate?” The short answer is, as always, maybe. As a general rule of thumb, New York courts are very reluctant to admit a copy of a will. If the original is lost, there is a presumption that a copy may not be the true will. It could be outdated, older version of the testator’s wishes. Maybe the original will was destroyed, and the person presenting the copy is trying to defraud the estate. These and more are just examples of concerns that judges may have. However, there are proactive steps that can be taken early in the estate-planning process to avoid this unfortunate complication.

New York Law Does Allow Lost or Destroyed Wills to be Admitted

Under Section 1407 of the New York Code, the following things must be shown in order to admit a lost or destroyed will to probate.

First, you must show that the will was never revoked. This is a pretty tough task. A judge may even require that a hearing be held in order to have testimony presented.

Second, the Code says that execution of the copy must be the same as required of an original will. This is fairly common sense. If a will requires two witnesses and specific language of attestation, a copy should do the same.

Third, each provision of the will must be “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.” Now this is tough. In general, if there is no document to present to the court, there is little chance of convincing a judge. However, if a copy is provided, and it meets all the same basic requirements of a valid will, including witnesses, then it may be admitted to probate so long as it can be proven that it is “true and complete.” Many judges will hold a formal proof of will hearing where witnesses are called to testify that they were present at execution, witnessed the decedent signing the will, and believed him or her to be of sound mind.

An Ounce of Prevention

To prevent all the complications, it is usually best to simply execute two identical original wills. Keep one in a secure, but easily accessible place, and leave the other in a safe deposit box or with a trusted friend of family member, preferably the representative. Some estate-planning attorneys will offer to maintain a copy of the will, but this practice is rare for many practical reasons. Some county clerks will even offer to record a will and issue certified copies. Although not available everywhere, this may also be an option for preserving evidence of authenticity. Discuss with your estate planning attorney what will work best for you.

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