New York Probate & Estate Litigation Blog

The issue of lost wills has been revisited once more by New York's Appellate Division, Second Department. In the Matter of Peter T. Demetriou 851 N.Y.S.2d 636, the appellate court has affirmed Nassau County Surrogate John  Riordan's decision to deny an objectant's motion for summary judgment to deny probate where the original copy of decedent's will was lost.  

If a will, shown once to have  existed and to have been in the testator's possession, cannot be found after the testator's death, the legal presumption is that the testator destroyed the will with the intention of revoking it. It is, however, possible to rebut this presumption by establishing that it was not revoked during the testator's lifetime and the disappearance or destruction of the instrument can be explained and shown to have occurred by some means other than the intentional act of the testator. In this matter, the Appellate Division held that a triable issue of fact existed concerning whether or not the testator destroyed the will with the intention of revoking it, thus opening the door to a trial which may ultimately lead to the admission of the lost will to probate pursuant to Section 1407 of the Surrogate's Court Procedure Act.