It is possible to admit a lost will to probate if certain important conditions are met. Section 1407 of New York’s Surrogate’s Court Procedure Act provides that a lost or destroyed will is admissible if (1) it is established the will has not been revoked, (2) The will has been executed in the procedure provided for by law and (3) All of the provisions of the will are clearly and distinctly proved by each of at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 a will proved to be true and complete.
In proving a lost or destroyed will, we have to deal with the basic conflict that arises between the law’s desire to do whatever can be done to insure the adherence to the last wishes of a person to dispose of his or her assets in whatever manner he or she sees fit and the need to protect against the all too obvious opportunities to commit fraud. Because the maker of the will is no longer alive and cannot explain to us exactly what has happened to the will, the law takes special precautions to be certain that the will has not actually been revoked.
It is presumed that if the original copy of a will has been lost or destroyed, that the will has been revoked by its maker. It is necessary to establish that the testator had good reason to believe that the original copy was in existence so that there was no reason to replace it. An example of this is a will which has been left at the office of the attorney- draftsperson for safekeeping. If that will is misplaced in the custody of the attorney or if it is destroyed in a fire at the lawyer’s office, a copy will generally be admissible to probate if it can be shown that the testator did not know that anything had happened to the original and believed it still to be safe and in tact at the lawyer’s office.
In trying to admit a copy of a lost will to probate, keep in mind that the presumption of revocation is strong and potentially impossible to overcome. This may be especially true in the case of an unsigned draft where the witnesses are identified but their signatures are conformed ( with a /s/ to indicate that they have signed)and do not actually appear on the document. In order to establish that the will was duly executed, these witnesses must be produced to testify they, in fact, observed the testator sign the will and that the testator understood the contents and ramifications of the will and possessed testamentary capacity. That done, it is necessary to establish the chain of custody of the original missing document, prove how it was lost or destroyed and that the testator was unaware that the document no longer existed. That pesky Dead Man’s Statute (CPLR 4519) will keep you from using any witness interested in the outcome of the proceeding from testifying as to what the decedent actually said which might go to establish his or her awareness of the location of the will.
A photocopy of a signed will is much easier to admit to probate than an unsigned draft. It is precisely for this reason that my clients sign only one copy of a will when they come to my office. That original is given to them in a sealed envelope with strict instructions not to photocopy it. Along with the original will, I give my clients an unsigned conformed copy which they may refer to should they have any questions in the future.
Having a photocopy of a signed will is a clear invitation to fraud. Consider what will happen when a family member comes to search for a copy of the decedent’s will amongst his or her valuable papers. Lo and behold there is an original, ink signed and duly witnessed will which sets out a specific testamentary scheme which turns out to be much less favorable to that relative than the photocopy of the prior will also sitting right there in the drawer. Which will surfaces to be admitted to probate? Is it the original which sets out the decedent’s true last wishes or has this document been “deep sixed” by an unscrupulous legatee who will now make out much better if the court admits the earlier copy ?
We are taught to keep a lot of our old documents. Deeds, mortgages, bank records and tax returns may be needed at some time in the future and generally should be retained in a safe place. This is definitely not the case when it comes to an old will. Once you have executed a new will (which generally by its own terms contains a provision actually revoking all of your prior wills), make sure that you have not retained any old copies of any prior will. Not photocopies (which you should never have anyway!). Not conformed copies or unconfirmed, unsigned drafts. Account for all of them and tear them all up. Bring your last signed will to your attorney’s office when you go to sign the new one. Once you have signed the will, rip up the old copy in front of your witnesses. These most basic precautions will help you to protect your estate against needless legal battles and expense.