Surrogate’s Court Procedure Act § 1407: Proof of Lost or Destroyed Will

Before the property of a deceased individual can be transferred to others, the decedent’s will, must go through a court proceeding called probate. Probate involves submitting the will to the New York Surrogate’s Court. The court will then review it and determine if it is valid. Unfortunately, there are instances in which a will is lost or inadvertently destroyed. The Surrogate’s Court must decide whether or not to admit the lost or destroyed will to probate. If the will was indeed valid and there is proof, then under Surrogate’s Court Procedure Act § 1407, Proof of lost or destroyed will, the court will admit it to probate. To learn more about what is required to get a lost or destroyed will admitted to probate contact an experienced New York probate lawyer at the Law Offices of Stephen Bilkis & Associates to discuss your concerns.

1. Proceeding to compel production of will: Surrogate’s Court Procedure Act, § 1401
2. Probate not allowed unless court satisfied: Surrogate’s Court Procedure Act, § 1408
3. Notice of probate: Surrogate’s Court Procedure Act, § 1409
4. Who may file objections to probate of an alleged will: Surrogate’s Court Procedure Act, § 1410

The New York Surrogate’s Court has an interest in making sure that only the true wishes of a testator as memorialized in his or her will are honored. When there are allegations that a valid will existed, but has been lost or destroyed, the Surrogate’s Court will admit that will to probate only under very specific conditions. Pursuant to section 1407 of the Surrogate’s Court Procedural Act, proof of lost or destroyed will, a will that is lost or has been destroyed may be admitted to probate only if:

• It has not been revoked. It must be established that the will has not been revoked. In New York in order for a will to be revoked, the testator must make a new will, must write a document that clearly shows his or her intent to revoke the will, or the testator must physically destroy the will. Actions that would amount to physically destroying the will include burning, tearing, cutting, obliterating, or mutilating the will. Such destruction must be done by the testator or at the direction of the testator. As a New York probate lawyer will explain, note that there is a distinction between the testator purposely destroying a will in an effort to revoke it, and the will being destroyed by accident such as in an accidental fire.
• Proper execution. The will must have been executed with the formalities required by New York law. This means that the will must have been signed by the testator in the presence of at least 2 qualified witnesses. The witnesses must also have signed the will.
• Credible witnesses. The third requirement in order for the Surrogate’s Court to admit a lost or destroyed will to probate is that two credible witnesses prove the provisions of the will. In the alternative, there must be copy of the will or a draft of the will that is proved to be true and complete.

In the case of Matter of Larsen, N.Y.L.J., Aug. 5, 2016, p.32 (Sur. Ct., Richmond Co.), the will of the decedent was damaged in a flood. The signatures on the will were wiped away. The proponent of the will petitioned the Surrogate’s Court to have the will submitted to probate. To comply with the requirements of section 1407 of the Surrogate’s Court Procedure Act, proof of lost or destroyed will, the proponent submitted:

• A conformed copy of the decedent’s will which the decedent’s attorney had
• The damaged will
• Affidavits from witnesses stating that the will had been properly executed

In addition, the proponent submitted evidence that the decedent had placed the will in a waterproof safe. Because it was in a safe that was supposed to be water proof, the decedent never checked to confirm that it was not damaged. The Surrogate’s Court concluded that the decedent had not revoked the will and admitted it to probate.

If the Surrogate’s Court refuses to admit a will to probate because the proponent was not able to satisfy the requirements for admitting a lost or destroyed will, the court will decline to admit it to probate. If that happens, and there is no other valid will, then the decedent’s property will be distributed based on intestacy rules. The decedent’s property will be transferred to his or her legal heirs, which would be the surviving spouse, children, parents, siblings, or grandparents.

It is not unusual for a will to be intentionally destroyed, damaged, or lost, particularly if a significant amount of time has passed between the executing of the will and the death of the testator. The best way to avoid this type of problem is to revisit your will periodically. This will ensure that it has not been lost, destroyed, or damaged. In addition, it gives you the opportunity to review and make sure it still reflects your wishes. If after reviewing your will you decide that you would like to make changes, make sure the changes to your will are made and executed with the help of an experienced probate attorney in New York to ensure that your updated or new will meets the legal requirements of New York State.

A lost or destroyed will may be admitted to probate only if

1. It is established that the will has not been revoked, and
2. Execution of the will is proved in the manner required for the probate of an existing will, and
3. 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.

For over twenty years the probate attorneys serving clients in New York at the Law Offices of Stephen Bilkis & Associates have successfully represented clients in complex estate matters before the New York Surrogate’s Court with skill, tenacity, and compassion. If you have questions or concerns related to the requirements of New York SPCA section 1407, proof of lost or destroyed will, or any other will, estate, or trust matter, contact one of our attorneys at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Westchester County, Nassau County, Bronx, Brooklyn, Manhattan, Queens, Long Island, Staten Island, and Suffolk County.