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New York Lost Wills – a Continuing Saga

Probate-2-300x200It is an important role of estate planning to prepare a Last Will and Testament.  This document allows a testator to set forth in various provisions his desires as to the disposition of his estate.  Once a Will is admitted to probate, the terms become validated and the testator’s estate plan is effectuated.  It is then subject to being finalized by the executor settling the estate.

As has been discussed in a number of articles in the New York Probate Lawyer Blog, that the Surrogate’s Court requires that the original Will be filed as part of the petition for probate.  The Court needs to see the original signatures of the testator and the attesting witnesses, as well as the Will provisions.  Unfortunately, it is a common occurrence that after a testator dies, the original Will cannot be located.  Instead, usually a copy of a Will is found.  In these circumstances, Surrogate’s Court Procedure Act Section 1407 entitled “Proof of lost or destroyed will” must be referred to in order to resolve the issue regarding the probate of the copy.

A recent decision in a Manhattan estate case provides a good example of the issues presented in these types of cases.  Estate of Rothberg was decided by Manhattan Surrogate Rita Mella on September 25, 2020.  In Rothberg, the decedent’s son petitioned to probate a lost Will.  He was the sole residuary beneficiary and the named executor.  The proceeding was uncontested.  Apparently, after the decedent’s death, the petitioner-son received the original Will from the decedent’s attorney.  However, prior to filing it with the Court, the son lost the original.  There is a presumption that a Will that cannot be located after death was destroyed by a decedent with an intention to revoke it.  However, the Court in Rothberg noted that such presumption does not exist if the attorney had possession of the Will.

The Surrogate also found that the evidence presented showed that the Will was duly executed in accordance with Estates, Powers and Trusts Law Section 3-2.1 entitled “Execution and attestation of wills; formal requirements.”  The Will contained an attestation clause which provides a presumption of validity.  There was also a self-proving affidavit signed by the attesting witnesses.

One of the requirements of SCPA 1407 is that all of the Will provisions must be proved by two witnesses or a copy of the Will shown to be an accurate copy.  The Surrogate pointed out that there was sufficient proof in this regard since the attorney-drafter did not provide a sworn statement that the copy was a true and accurate copy of the original.

The ruling in this case was that the Court found that the Will was not revoked and was also validly executed.  However, the Court granted the petitioner time to provide additional evidence to show that the copy was a true and accurate reproduction of the original.

I have represented individuals in lost Will probate cases and other Surrogate’s Court matters.  These cases can be difficult to prove because of the presumption of revocation.  Call Me Now for a free confidential review of your estate case.  We provide reasonable and flexible fee arrangements and personal representation.

New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 40 years resolve issues relating to guardianship and probate and estate settlement throughout New York City including the Bronx, Queens, Brooklyn, Manhattan, Nassau and Suffolk County.  If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial free consultation.

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