A New York Will Can Be Admitted to Probate Where the Original Is Lost

Wills in New York are required to be executed in accordance with the statutory guidelines. Estates, Powers and Trusts Law (EPTL) Section 3-2.1 entitled “Execution and attestation of wills; formal requirements”, sets forth very definite rules for Will authenticity. For example, a Will generally needs to be in writing and signed by the testator at the end of the document. There also must be two witnesses to the execution. The New York Probate Lawyer Blog has published many articles discussing the rules and other issues concerning the making and signing of Wills.

The Surrogate’s Court strictly adheres to the rules regarding Will execution. The Court wants to follow the statutory directions and be certain that the Will that is probated is authentic.  There are times when the original of a decedent’s Will cannot be located. This situation was discussed in a recent case decided by Manhattan Surrogate Nora Anderson on December 1, 2017 entitled Matter of Raleigh. In Raleigh the decedent signed his Will in an attorneys office in New Jersey. The original Will was then mailed to the attorney’s office in New York where the attorney put the Will in the client’s file and stored it with a storage company. 

After the testator died, the testator’s file could not be located at the storage company. Under Surrogate’s Court Procedure Act (SCPA) Section 1407 entitled Proof of lost or destroyed Will”, the missing document can be admitted to probate if certain criteria provided by the statute are satisfied.

After reviewing all of the facts, the Court found that there was a justifiable basis to explain the loss of the original paper and that the original was duly executed in the attorney’s office. The Court was also able to avoid the issue regarding the presumption of revocation. This presumption occurs where a Will cannot be located and the decedent had possession of it. In Raleigh, the Will was in the possession of the attorney who had placed it into storage. Based upon these facts the Court admitted the Will to probate despite the loss of the original signed paper.

I have represented many individuals in probate and contested probate cases throughout the New York City Surrogate’s Courts. Many issues arise in these cases such as lost wills, Will Contests, Kinship matters and other estate litigation problems. Call me now if you have an issue or concern regarding a Will, probate or estate settlement.

New York City estate attorney Jules Martin Haas, Esq. has been representing clients in Estate Administration proceedings throughout the past 30 years. I have represented clients in many counties including Suffolk and Westchester Counties. If you or someone you know is involved with or has questions about a Last Will or other aspects of Probate or Estate Administration, please contact me at (212) 355-2575 for an initial consultation.

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