When the Original Will Cannot Be Found
The presumption that has to be overcome
Sometimes the will exists, everyone knows what it said, and nobody can find the signed original. A photocopy is in a drawer. The lawyer who drafted it has retired. The safe deposit box has been opened and the will is not in it.
New York allows a lost or destroyed will to be admitted to probate, but the standard is high and there is a presumption to get past first. This is a proceeding worth starting properly, because the family usually gets one attempt at it.
If a will was last known to be in the testator's own possession and cannot be found after death, New York presumes the testator destroyed it — intending to revoke it. That is the obstacle, and it is a real one. The law's reasoning is straightforward: the easiest explanation for a missing will that the testator was keeping is that the testator got rid of it.
The presumption can be rebutted. Evidence that the testator spoke about the will as still in force, that a house move or a flood or a fire intervened, that the papers were disturbed by someone else, or that there was no reason to revoke and every reason not to, can all be put before the court.
The presumption does not arise in the same way where the original was kept by the drafting attorney. That is the most useful fact on this page for most families — but it comes with a qualification worth being honest about: it helps only if it can actually be shown that custody never passed back to the client. A file note saying the original was given to the client thirty years ago will undo it.
What the court requires
Three things have to be established, and all three, not any of them:
That the will was properly executed. The same formalities that would be proved for any will — the signature, the witnesses, the attestation.
That the will has not been revoked. This is where the presumption above is met head-on.
That the provisions of the will are clearly and distinctly proved. New York's requirement here is specific: it takes each of at least two credible witnesses, or a copy or draft of the will proved to be true and complete. A conformed copy from the drafting lawyer's file, or the executed copy the client was given, is ordinarily the strongest evidence available.
What this means in practice
A photocopy is not nothing. It is often the thing the whole proceeding turns on. Where a complete copy exists and the drafting attorney's file supports it, the case is a good deal stronger than families expect when they call.
Where nothing exists but recollection, the case is much harder, and honesty about that at the outset is worth more than optimism. If the will cannot be proved, the estate passes under any earlier will that can be, and failing that under the intestacy rules — which is very often not what the family understands the deceased to have wanted, and is the reason the proceeding is worth bringing.
These proceedings are usually contested, because someone in the family generally does better under intestacy than under the missing will. Expect the people who benefit from the will not being found to appear and say so.
How to make sure this never happens to your family
Two things prevent almost every lost-will proceeding we see: telling your executor where the original is, and keeping a complete copy with a note of who holds the original. We set out exactly how to do both, and how to think about a safe deposit box, on our page on what happens to your original Will.