Families sometimes discover, after a loved one's death, that no one can find the original signed will, only a photocopy or a scanned PDF. This situation is stressful, but New York law does allow a copy to be admitted to probate under the right circumstances, provided the proponent can overcome a legal presumption working against them.
The Presumption of Revocation
When an original will was last known to be in the decedent's possession and cannot be located after death, New York courts presume that the decedent destroyed it intentionally, meaning they revoked it. This presumption exists because EPTL 3-4.1 recognizes physical destruction as a valid method of revoking a will. Overcoming this presumption is the central challenge in a lost or copy-of-will probate proceeding.
What It Takes to Probate a Copy
To rebut the presumption and successfully probate a copy under SCPA 1407, the proponent generally must show several things: that the will was validly executed in the first place, that the presumption of revocation has been overcome with credible evidence, and that the exact contents of the will can be proven, typically through the copy itself along with testimony from the drafting attorney or witnesses. Evidence explaining why the original cannot be found, such as a house fire, flood, or the decedent's diminished capacity at the end of life, can also help rebut the presumption.
- Prove the will was properly executed with the required formalities
- Present evidence explaining the original's absence that does not suggest intentional revocation
- Offer clear proof of the will's exact terms, often via the attorney-drafter's file copy
- Anticipate that distributees may contest the petition, since they have a financial interest in the will failing
- Understand that courts scrutinize these cases closely to prevent fraud
When the Effort Fails
If the presumption of revocation cannot be overcome, the estate is treated as if the decedent died without a will, and assets pass under New York's intestacy statutes instead. This can produce a very different result than what the decedent intended, which is part of why our intestate succession guide is worth reviewing if you are facing this scenario. It also underscores the importance of safe, known storage for original estate planning documents; our wills team can advise clients on best practices for keeping originals secure and locatable, such as filing the original with the Surrogate's Court for safekeeping during the testator's lifetime, an option many New Yorkers do not realize is available to them.
Probating a copy of a will is legally possible but factually demanding, and outcomes vary widely based on the evidence available. If you are dealing with a missing original will or want to make sure your own documents will not create this problem for your family, call Schwartsman Law Group at +1 212 518 3868 or arrange a free consultation to discuss your options.
