In order to admit a Will to probate with the county surrogate’s office, the original Will, which has the original signatures of the decedent and the witnesses, must be produced. At times, however, the original copy of the Will cannot be located.
If a copy of the Will is found, a party may seek to admit to probate a copy of the Last Will and Testament. If all potential beneficiaries of the estate agree that the copy of the Will should be admitted to probate, an action can be commenced which will thereby result in the copy of the Last Will and Testament being admitted to probate. On the other hand, should a party dispute the admission of the copy of the Will to probate, contested litigation will follow.
In general, if the original copy of the decedent’s Last Will and Testament cannot be located, it is presumed that the decedent intentionally destroyed and revoked this document. This rebuttable presumption can be overcome, however, by clear and convincing evidence introduced by the proponent of the Will the decedent did not intend to revoke his Will in order to admit the copy to probate. On the other hand, if there is evidence that the decedent did not possess the original Last Will and Testament prior to its alleged destruction, the party seeking to challenge the admission of the copy the Last Will and Testament to probate will bear the burden to demonstrate that the decedent did in fact revoke this instrument.
Typically, if there is evidence that the decedent did not have in his possession the original copy of his Last Will and Testament at the time of his death, and the original cannot be located, the court will allow a copy of the Will to be probated. Anyone seeking to challenge the admission of this Last Will and Testament to probate would have to prove its invalidity by clear and convincing evidence.
On the other hand, if evidence is produced that the decedent had access to his Last Will and Testament and the original cannot be located at his death, the court may conclude that there is a rebuttable presumption that the Will was destroyed. Under such circumstances, the proponent of the copy of the Will would have to demonstrate by clear and convincing evidence that the original was not intentionally destroyed or revoked. Obviously, what constitutes access to the Will is fact specific to each case. For instance, if the Will was stored in a safe in the decedent’s basement, access would be presumed. On the other hand, if the Will was stored at a remote location, access will likely not be presumed. Once again, this is a highly fact sensitive inquiry that will be decided at the time of trial.
As such, if an original Last Will and Testament cannot be located, the proponent and/or the opponent of the proposed Last Will and Testament should consult with an attorney to make sure their interests are protected.