New York law generally requires that, to have a will admitted to probate, a party offering the will for probate must file the original instrument with the Surrogate's Court (Margaret V. Turano, Practice Commentaries: SCPA § 1407 [McKinney's]). When an original will is lost, Surrogate's Court Procedure Act ("SCPA") § 1407 sets forth the requirements that the will's proponent must satisfy in order to have the instrument admitted to probate (SCPA § 1407).
SCPA § 1407 provides that a "lost or destroyed will may be admitted to probate" if: (a) "It is established that the will has not been revoked"; (b) "Execution of the will is proved in the manner required for the probate of an existing will"; and (c) "All of the provisions of the will are clearly and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" (id.). As to the issue of revocation, "where a will known to have been in the possession of the testator cannot be found after the testator's death, the law [oftentimes] presumes that the testator destroyed the will with the intention of revoking it" (Matter of Brandt, File No. 2023-3367/A, Decision After Hearing, dated Mar. 18, 2025 [Sur Ct, Nassau County]).
The proponent of a lost will has the burden of overcoming "the presumption of revocation by proving that the will was not revoked during the testator's lifetime" (id.). It is possible to overcome that presumption, but the proponent of a lost will must come forward with clear and convincing evidence in order to do so (id.).
Surrogate's Courts have recognized that no presumption of revocation arises when the evidence fails to establish that the testator ever had the original will in his or her possession after executing the instrument (id.). Thus, in Matter of Brandt, the court admitted a copy of a will to probate, based upon testimony establishing that the testator gave the original will to her daughter for safekeeping; the daughter placed the original instrument in a safe at her home; and the safe was stolen from the daughter's home during a burglary (id.). Similarly, in Matter of Johnson, the court found that no presumption of revocation applied, given testimony establishing that the attorney-draftsperson's law firm retained the original will after the testator executed it and may (or may not) have mailed the original instrument to the testator when the firm closed (Matter of Johnson, File No. 2020-433, Decision After Hearing, dated Jan. 14, 2022 [Sur Ct, Nassau County]).
Recently, in a contested lost will proceeding, New York County Surrogate Rita Mella denied competing motions for summary judgment that concerned the presumption of revocation (Matter of Welter, 2025 NYLJ LEXIS 1725 [Sur Ct, New York County May 15, 2025]). In Matter of Welter, the testator, a onetime professor at a university that benefitted under her will, died on December 5, 2022 (id.). Following the testator's death, searches of her apartment yielded a "conformed copy" of a will dated March 22, 2007, and "an original letter from the attorney-drafter of [the testator], dated March 23, 2007" (id.). The letter stated "that a confirmed copy of [the testator's] will (signed at [the attorney-draftsperson's] office [on] March 22, 2007) is enclosed, that the original has been retained at his office subject to her instructions, and that she may contact his colleague should he be unavailable" (id.). By the time that the testator died, the attorney-draftsperson had "severe Alzheimer's Disease that render[ed] him unable to communicate in any way" (id.). In addition, the "colleague named in the letter possessed a computer file that is a duplicate of the 'confirmed copy,' adding only a Self-Proving Affidavit signed May 21, 2007 by the same witnesses" (id.).
Following the testator's death, contested proceedings concerning the lost will's validity, discovery, and dispositive motion practice ensued (id.). Surrogate Mella denied the parties' summary judgment motions, finding that issues of fact existed on the question of revocation (id.). In doing so, the Surrogate acknowledged the March 22, 2007 letter "indicating that[, at the testator's] request, the original [will] would be kept at the attorney's office"; and the fact that, "two months after the execution of the instrument, when the affidavit of the attesting witnesses was notarized, the original was still in the possession of the attorney-drafter, who . . . usually kept the original wills he drafted in a locked cabinet in his office" (id.). But, the Surrogate also concluded that the objectant (the testator's son, whose interests the propounded will adversely effected) had "raised issues of fact that require a trial by showing that[,] at any point during the 15-year period that transpired between the execution of the instrument in March 2007 and [the testator's] death in December 2022, [the testator] could have instructed the attorney-drafter to return the original to her and could have revoked it then" (id.). Thus, Surrogate Mella found that summary judgment was warranted (rendering a determination that ultimately led the parties to enter into a settlement agreement) (id.).
In light of the foregoing, a party offering a lost will for probate may be able to avoid the application of a presumption of revocation by establishing that the instrument's attorney-draftsperson maintained possession of the original will after the testator executed it. However, as Welter demonstrates, the passage of an extended period of time between the testator's execution of a will and the testator's death, without an explanation as to the whereabouts of the original will, may necessitate a trial as to whether the testator revoked the original instrument before death.
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