Yes, in New York it is possible for a copy of an original, executed will to be admitted into probate. It is even possible for a draft of a will to be admitted or even a will that is non-existent where the two witnesses clearly remember the provisions. When an original will is not accessible SCPA §1407 designates that a lost or destroyed may be admitted for probate only if:
- It is established that the will has not been revoked;
- Execution of the will is proved in the matter required for the probate of an existed will; and
- All of the provisions of the will are clearly and distinctly proved by each of at least two credible witnesses or be a copy or draft of the will proved to be true and complete.
The way this usually comes about is that after the deceased person passes, a family member may find or have been given a copy of the decedent’s will. The family member may take it to an attorney. The attorney may ask a few questions and then may find out there was a safe deposit box and that the decedent may have placed the original will in that box. If the family is lucky, sometimes a Petition to Open a Safe Deposit Box is a simple resolution to this problem. Now they can begin probate in NY Surrogates Court. I’ve had cases where the safe deposit box was full of money with no will, plain empty, or even worse yet, closed out a year before the decedent’s death.
So now, usually the proposed executor is holding on to this copy of the decedent’s will, feeling stressed, begging the question: now what? Well, now it’s time to get to work. To even begin an action under SCPA 1407 one will need the two witnesses who originally witnessed the will (and who distinctly and clearly remember the provisions), a copy of the will or a draft of the will. Then the proponent of the will will have to rebut the presumption that when a will is lost, the decedent destroyed the will for the purpose of revoking it. (See In re Staiger, 243 N.Y. 468 and In re Kennedy’s Will, 167 NY 163 quoted in Matter of Massimo 2015 NY Slip Op 51927(U)). At this point each case becomes highly fact specific. I hate to end the exciting ride into lost wills, but to prevent going through the incredible gamut of possibilities – this is when it’s time to call an estate attorney with experience in this situation.
