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“That a lost or destroyed will will be admissible to probate if it is established that the will has not been revoked, the will has been executed in the procedure provided by law and all of the provisions of the will are clearly and distinctly proved by each of at least two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

Surviving Spouse’s Right of Election

Scales of justice

New York has a special statute which protects spouses from being disinherited. The name of this statute is called “The Right of Election”. Under this statute a spouse is entitled to a minimum “elective share” of the assets of his or her spouse. If a spouse is disinherited in a will or trust and or the spouse receives less of the decedent’s estate than he or she is entitled to, they can ask for their “elective share” under the right of election.

Elective share in New York

The right of election allows a spouse to challenge what she receives in a will. The right of election entitles the spouse to receive the greater of 50,000.00 or 1/3rd of the estate. In New York this only applies to individuals who are legally married. New York does not accept the existence of a common law marriage for estate purposes.

The request for an elective share includes both assets in the parties names and “testamentary substitutes”. Testamentary substitutes can be bank accounts, real estate and other types of assets that are designed to prevent the spouse from receiving his or her just share in an estate.

Exercising the Spousal Right of Election

When a spouse does not receive the value of $50,000.00 or one third of the estate, he or she can take action to file for their right of election against the estate. This right of election is exercised by the surviving spouse who has either been disinherited or has not inherited as much as he or she would receive in the elective share. An individual who seeks to exercise his or her elective share must take this action within six months after an executor or an administrator has been appointed to handle the estate. The six month period acts as a statute of limitations. Failure to take the appropriate action to claim one’s elective share during the six month period will bar them from claiming the elective share in the future.

The exercising of one’s rights to an elective share is not something that an individual should do on his or her own. Should you feel you have not received an adequate amount of inheritance from your spouse you should contact an estates attorney and meet with him or her to discuss your options and how to protect your interests.

NY Attorney Elliot Schlissel

Elliot S. Schlissel is an estates lawyer representing individuals in estate planning matters, will contests, accounting proceedings and all other estate related litigation issues throughout the metropolitan New York area.

Estate Litigation In New York

Signing a document

The purpose of estate planning is to develop a plan that minimizes or avoids estate litigation. However, if you are an heir, a creditor, a family member, a child, or a spouse of someone who died and you feel that you have been treated unfairly and/or there has been undue influence fraud or duress, a will proceeding, administration proceeding or trusts proceeding may be necessary to protect your rights and interests.

Contesting the Will in New York

The most common estate proceedings are a will contests. There are a variety of grounds that can be used to challenge the validity of the will, children who have been left out of the will, family members who promises were made to and or individuals who were disinherited from the will who believe that the will should not be accepted by the court as a valid document can retain legal counsel to litigate the validity of the will. The following are issues that can be brought up to the Surrogate’s Court in New York regarding the challenging of the validity of the will.

  • The decedent has been the subject of fraud or duress with regard to the preparation of this will.
  • Was the will properly prepared and properly executed?
  • Has the will been amended, modified or changed?
  • Is there a subsequent will or prior will?
  • Is the will clear as to the beneficiary scheme?
  • Did the decedent, on the day he or she executed the will, have competent mental capacity?

NY Attorney Elliot Schlissel

For more than 35 years, Elliot S. Schlissel and his associates have been representing clients with regard to the preparation of wills and litigating wills and litigating all types of issues concerning wills, trusts and estates. The office can be contacted at either 516-561-6645 or 718-350-2802 for a free consultation regarding all types of estate issues.


A person writing a will

A will is a basic document that contains your instructions with regard to the distribution of your assets in the event of your death. However, there are numerous other issues that are dealt with during the course of estate planning. The following are some other issues that you may have to deal with.

  • Who will take care of your children (if they are minors) in the event of your death – Thinking about death and having someone else raise your children involves very painful thoughts. However, accidents happen and sometimes people die prematurely. Your will can name guardians for your children. Your will can also contain provisions dealing with who will control your assets and preserve them for the benefit of your children.
  • Who would you like to inherit your property at the time of your death? – If you die without a will, your assets pass under the laws of intestacy. This may not be the distribution scheme that you have in mind. If you have been married more than once, you should speak to an attorney about how your second spouse will fair in the event of your death. You may want to make provisions for children from your first marriage. In the event you die, and a second spouse inherits your assets, when that second spouse dies your assets may end up going to her children, not to your children from an earlier relationship.
  • Who will take care of your estate in the event you die? – If you draft a will you can name an executor. The executor will handle your funeral arrangements, your burial, and see to it that the terms of your will are carried out. If you do not have a will, close relatives of yours can petition the court to be named the administrator of your estate. You may end up having someone administer your estate that you really don’t trust.

      estates attorney on Long Island

      At the Law Offices of Schlissel DeCorpo we have been writing wills for more than 35 years, and helping our clients with regard to the distribution of assets related to the death of loved ones, friends and relatives. If you have questions concerning estate planning, probating a will, or dealing with estate issues our attorneys are available 7 days a week to answer your questions. Feel free to call us at 800-344-6431.



Surrogate Norm Norah sitting in Manhattan Surrogates Court recently had a case before her where a brother objected to being disinherited in a will. In this case the decedent’s brothers challenged the probate of the will. The two brothers were the sole blood relatives of the decedent sister. However, the sister had disinherited them in her will drafted and executed in the year 2000. The brothers claimed that the will was not properly executed and had been fraudulently altered.


The will was submitted to probate with evidence the decedent and her late husband had executed mirror image wills. These wills were executed at the office of the attorney draftsperson. The brothers claimed the will had typographical and drafting errors in it. The attorney who drafted the will claimed that these last minute modifications to the will were made by the decedent and were also caused by carelessness when he proofread the will. The attorney draftsman claimed he had copied the provisions of the decedent’s previous will drafted in 1999 word for word and that will also disinherited the decedent’s brothers. Although the brothers did not challenge the attorney’s explanation for the errors in the will, they claimed the mere existence of these errors was sufficient to negate the presumption that the will was properly executed.


Judge Anderson disagreed with the presentation made by the brothers challenging the will. She found the evidence was sufficient to show the will had been executed with the appropriate execution formalities. She granted summary judgment dismissing the challenge to the probate of the will by the brothers.

Elliot S. Schlissel, Esq. And his associates represent clients in all aspects of wills & estate proceedings.

estates attorney on Long Island


Gavel & Books

In a case before Surrogate Robert Gigante, Pending in Richmond County (Staten Island) Judge Gigante dealt with challenges to the probate of a will based on undue influence and failure of the will to be properly executed. The will was submitted for probate by the decedent’s brother. The decedent’s children objected to the probate of the will. The will was dated the day before the decedent died.


Surrogate Robert Gigante found there was no proof there were any efforts maintained to unduly influence the decedent with regard to this will. Justice Gigante stated the objections by the children did not produce a scintilla of evidence of undue influence. His decision stated their objections were mere conclusions and these conclusions were not substantiated by the presentation of evidence to the Court.


The children had also alleged that the will was not properly executed and that the signature of the decedent did not appear on the will. Justice Gigante however, found the children did not produce evidence or documentation or an analysis as to how the signature at the end of the will differed from other examples of their father’s signature. Justice Gigante stated in his decision dismissing the children’s objections there was no basis for the court to give any weight to the children’s unsupported opinions. In addition, he found they failed to demonstrate any material issues of fact concerning the will’s execution. Justice Gigante granted a summary judgment motion on behalf of the decedent’s brother dismissing the objections filed by the children and he allowed the will to be admitted to probate.

Elliot S. Schlissel, Esq., represents clients throughout the metropolitan New York area with regard to issues concerning wills, trusts and estate-related matters.

estates attorney on Long Island

VIDEO: Challenging A Will Is Possible!