So you spend the time and money to carefully plan out your estate and you prepare and execute a will that ensures that your property goes exactly where you want it to. Once you’ve made it official, you put the original copy of your last will and testament with your other important papers, in a file cabinet in your home or study.
That could be a big mistake! In the state of New York, if the original copy of your last will and testament cannot be located after your death, there’s a high likelihood that it won’t be admitted during the probate proceedings, even if you can find a copy. That’s because, in New York, if a will was known to be in the decedent’s possession, but cannot be found, there’s a presumption that the will was revoked. That presumption can only be overcome by affirmatively showing that:
- The will has not been revoked
- The will was properly executed
- The provisions of the will are clearly and distinctly proven by either two credible witnesses or by a copy of the will shown to be true and complete
As a practical matter, overcoming the presumption of revocation is extremely difficult, as it can be challenging to prove conclusively that the decedent did not revoke the will.
A 2015 decision by the Queens County Surrogate upheld this presumption. In Matter of Massimo, testimony indicated that the deceased was known to have an original copy of his last will and testament, as well as a codicil, in a Federal Express envelope in his sock drawer. At his death, however, family members could not find the original copies of either document, but were able to find photocopies. It was also proven that one family member, who had the motive and opportunity to destroy the original will, had entered the decedent’s residence.
The court, following established New York law, found a presumption that the will and codicil had been revoked. The court further concluded that, absent concrete evidence that a family member had destroyed the original will, the presumption that the decedent had voluntarily revoked it could not be overcome.
This office has been successful under certain circumstances to probate a copy. There is a series of steps or requirements that one must meet in order for the Court to accept a copy. For example, if the original Will was known by another disinterested person to be in the possession of the testator, had seen it recently, discussed it with the Testator and the home where the Will was kept was destroyed by a storm or fire. Under limited circumstances, a copy may be admitted to probate.
Our office can evaluate your case and determine if such a proceeding is appropriate or it an intestacy proceeding is necessary. Should you have any questions, please contact our office to speak with an attorney or our staff.
Contact the Law Office of Bonnie Lawston
At the Law Office of Bonnie Lawston, we focus our estate administration practice on estates subject to probate in Nassau County and Suffolk County on Long Island. Contact our office online or call us at 631-425-7299.