Every effort should be made to preserve an original will, assuming it is expected that the will may be offered for probate. If an original will is lost, however, the testator’s plan will not necessarily be frustrated.

Pursuant to SCPA 1407, a lost will may be admitted to probate when three conditions are met: “(1) it is established that the will has not been revoked, (2) execution of the will is proved in the manner required for the probate of an existing will, and (3) all provisions of the will are clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of the will proved to be true and complete.” The third requirement is often met by the production of a photocopy of the original will (see Estate of Tendler, 4/9/2009 NYLJ 42 [col 5] [Sur Ct, New York County]; Estate of Koontz, 4/8/2009 NYLJ 35 [col 5] [Sur Ct, New York County])

A will that is “shown to have existed” and was in the testator’s possession at the time of his or her death is presumed destroyed and thus revoked (see In re Evans, 264 AD2d 482 [2d Dept 1999]). This presumption is rebuttable, however, by satisfaction of the aforementioned statutory requirements (In re Demetriou, 48 AD3d 463 [2d Dept 2008]). In the event that the will were not in the testator’s possession at the time of his or her death, no presumption of revocation exists. Thus, if the attorney-draftsman retains the original will and it is ultimately lost or destroyed, the proponent may more easily prove that there was no revocation.

Consider the facts in Estate of Raymond, 3/25/2009 NYLJ 35 (col 3) (Sur Ct, Bronx County). There, the decedent’s original will had been maintained in the office of the attorney-draftsman. The attorney’s office was damaged following the July 2007 Manhattan steam pipe explosion, and the City of New York Department of Health ordered the destruction of all documents that had been stored there. The testator never executed another will, and upon his death, a conformed copy of the destroyed will was offered for probate. Noting that no rebuttable presumption of revocation existed because the original will was not in the testator’s possession, the court was satisfied that all three prongs of SCPA 1407 were met. It was held that the will would be admitted to probate.

Similar circumstances were presented in Estate of Castiglione, 40 AD3d 1227 (3d Dept 2007). The attorney-draftsman submitted an affidavit in support of probating a photocopy of the will, stating that the original had been kept with him, but that it had been lost when his office relocated. The attorney-draftsman of the decedent’s codicil corroborated this evidence, and further confirmed that the decedent had believed his will was still in existence upon executing his codicil. The Appellate Division was satisfied that the evidence presented satisfied SCPA 1407, and dismissed allegations that the will was invalid due to lack of testamentary capacity and undue influence. The Surrogate’s Order directing the probate of the will was therefore affirmed.

For a more in depth discussion of probating lost wills, see Necessary Requirements to Successfully Probate a Lost Will, Nassau Lawyer, November 1, 2008.