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A New York Last Will May Be Deemed Revoked if Not Found

Estate planning is an essential part of making certain that a person’s assets are managed and distributed in accordance with one’s intentions. New York Estate Lawyers counsel clients with regard to the preparation and execution of planning documents such as Last Wills, Living Wills, Health Care Proxies, Powers of Attorney and Living Trusts.

Once a person takes the time and effort to prepare the necessary planning papers it is important that the originals of the signed and notarized documents be maintained in a safe and secure location. Also, the papers should be stored in a place where they can be found and utilized should the occasion arise.The New York Probate Lawyer Blog has provided many posts regarding Estate Litigation involving the validity of papers which purport to be Last Wills. It is not uncommon after a person dies for family members or friends to search for the original of the decedent’s Last Will. Sometimes the original Will is held for safekeeping with an attorney. However, it is very common that a decedent will keep the original of a Last Will himself and file it among his papers in his home. Unfortunately, when a person maintains possession of his Will and the original cannot be located after his death, it is most likely that the Will cannot be admitted to probate. Thus, the terms of the Will do not take effect and the decedent’s assets pass to the decedent’s next of kin pursuant to the laws of intestacy.

The law in New York is that when the original of a Will that is known to have been in the decedent’s possession cannot be located after his death, there is a presumption that the Will was revoked. Unless the presumption can be disproved, which is difficult to accomplish, the Will terms are meaningless. The presumption of revocation prevails even if a copy of the Will can be located unless certain particular circumstances show that the Will was not destroyed by the decedent such as in the case of a fire or other events that may have caused the unintended loss or destruction of the document.

Surrogate’s Court Procedure Action (SCPA) Section 1407 entitled “Proof of lost or destroyed wills” provides the statutory guidelines to demonstrate the validity of a will that cannot be found or was destroyed. Having a will admitted to probate in these situations is difficult and requires that all of the statutory criteria be met.

A recent case decided by Queens County Surrogate Peter Kelly on December 23, 2015 entitled Matter of Massimo provides an interesting example of a missing Will. In Massimo, the decedent was found to have kept his Will and a Codicil in a Federal Express envelope that he kept in a sock drawer in his dresser. When the decedent died the original Will and Codicil could not be located. Although a copy of the Will and Codicil were located the Court found that the presumption of revocation could not be overcome. The Court also found that the presumption could not be defeated by the mere fact that the decedent’s family member had entered the decedent’s residence and had the motive and opportunity to destroy the Will and Codicil. Absent any direct proof that the family member destroyed the papers the Court said that the Will must be found to have been revoked.

I have represented many clients in probate cases that involved the validity of a Will. If you have a question regarding the probate of a Will or estate administration call me now to discuss your issue.

An experienced New York trusts and estates lawyer can assist with guidance for proper Will preparation and execution. New York Probate Attorney Jules Martin Haas, Esq. has been representing clients in New York in Trusts and Estates matters and Surrogate’s Court proceedings throughout the past 30 years in Suffolk and Nassau and other counties. If you or someone you know is involved with or has questions about a New York estate matter, please contact me at (212) 355-2575 or email: jules.haas@verizon.net, for an initial consultation.

Jules Martin Haas provides his clients and members of the community with a free monthly e-newsletter which contains articles covering a variety of legal topics including estate planning, financial matters and real estate. If you wish to be placed on the e-newslist, simply e-mail me at jules.haas@verizon.net. You can cancel receiving the newsletter at anytime.

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