When a person creates a Will, an estate is supposed to be administered and distributed in accordance with the terms of the document. However, before the provisions of a Will can be put into effect, the Will must be admitted to probate. Probate proceedings in New York are essentially the steps that are taken to have the Surrogate’s Court validate a Will. Once a Will is admitted to probate, an executor is appointed and the terms of a Will become effective. In the event a Will is denied probate, then a decedent’s estate is subject to the laws of intestacy unless there are other Wills waiting in line for review.
In many estates, a major problem encountered in probate is locating a decedent’s original Will. Original means the document on which the original signatures of a decedent and attesting witnesses appear. It is not sufficient to locate a photocopy or a conformed copy of the paper. If the original cannot be found then there are strict rules regarding the probate of a lost document. In particular, SCPA Section 1407 entitled “Proof of lost or destroyed will” provides the requirements for probating a lost Will.
Losing an original Will is quite common. In many instances an attorney who prepared and supervised the execution of a Will, gives the original document to the client once the signing is completed. This may occur many years before death. The testator / client may move residences or have damage to a dwelling requiring cleanouts or repairs. A Will that is not securely stored can easily be lost or destroyed along with other essential papers. A major hurdle in lost Will cases is that where a Will had been in a decedent’s possession before death, there is a strong presumption that a decedent revoked the Will which cannot be found.
The many obstacles to probate were recently presented in a Manhattan estate case entitled Will of Deborah Deangelis decided by Manhattan Surrogate Hillary Gingold on January 22, 2025. In Deangelis a petition was filed to probate a conformed copy of a Will. This was not even a photocopy of the actual signed document. The claim was made that the original was retained by a retired attorney who then allegedly transferred the original to another attorney upon retirement. The second attorney could not locate the original. The Court pointed out that SCPA 1407 requires a showing that the purported Will was not revoked, that it was executed in accordance with the statutory requirements and that the Will provisions are proven by two credible witnesses or a copy that is shown to be true and complete.
After review of the facts the Court denied probate to the document. It was noted that since there was no proof that the decedent never received the original Will there was no evidence to overcome the presumption of revocation. The Court also found that the alleged loss of the Will while in the possession of the attorney was speculative and there was insufficient proof that the conformed copy represented a true and complete copy as required by SCPA 1407.
Probating a Will can be complex as shown by Deangelis. The assistance of an experienced estate lawyer can be essential for estate settlement. I have been handling estate cases throughout New York City and other counties for the past forty (40) years. Do you have an issue regarding an estate? Call Me Now for a free confidential review of your estate matter. We offer 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.