Can a Copy of a Lost Will be Probated

Person signing a legal document

Original wills should be carefully preserved and maintained. The attorney who drafts the will usually will maintain the will in either a safe or fire proof file cabinet. However there are occasions when wills are lost or accidentally destroyed. When a will is destroyed or lost it is presumed that this action was taken by the testator (person whose will it is) to revoke the will. The law takes this position to avoid fraud regarding these matters. There are occasions when wills are left with attorneys and for one reason or another they are either lost or destroyed. An example of this is Hurricane Sandy flooding a storage facility that lawyer maintains wills at and the salt water destroying the will. In these cases the attorneys’ office will make a presentation to the court and show the testator did not know that the will was destroyed and he or she had no intention of revoking the will by its destruction. In addition the attorney’s office would show the testator (person who made the will) believed the will still existed at the time of his or her death at the law office and was properly secured.

The Presumption of Revocation of a Will

Section 1407 of the New York Surrogate’s Court Procedure Act deals with issues concerning wills that have been destroyed, lost or rendered unreadable. The section states:

“That a lost or destroyed will will be admissible to probate if it is established that the will has not been revoked, the will has been executed in the procedure provided by law and all of the provisions of the will are clearly and distinctly proved by each of at least two (2) credible witnesses or by a copy of a draft of a will proved to be true and accurate.”

This is a difficult standard to meet. The presumption of the revocation of a will if it cannot be produced is strongly enforced by the courts in New York. In addition to probate a will the individual who seek to have the will probated must establish the will was duly executed. In order to accomplish this goal the witnesses to the will need to submit an affidavit or testify. They specifically must state that they witnessed the testator execute the will. In addition they must testify or swear to in an affidavit that the testator was competent, acknowledged the document was a will, understood the terms and conditions in the will and had testamentary capacity to execute the will.


Attorney Elliot Schlissel

Copies of lost wills can be probated but it is difficult to do this.