Yes. A lost or destroyed will may be admitted to probate pursuant to New York Surrogates Court Procedure Act (SCPA) 1407 only if:
- It is established that the will has not been revoked, and
- Execution of the will is proved in the manner required for the probate of an existing will, and
- 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.
In the New York Surrogate’s Court, Bronx County case of ESTATE OF PROVEDENCIA RIVERA, a/k/a PROVIDENCIA RIVERA , the decedent died in 2018, leaving behind two children. Her grandson, who was the executor named in the will, filed a petition to probate a photocopy of the will dated March 17, 1998 pursuant to SPCA 1407. Neither of decedent’s children appeared in the proceeding or filed objections to the petition. The grandson submitted a self-proving affidavit signed by the witnesses on the day the will was executed and an affidavit from his brother stating that he witnessed decedent give him an original copy as well as the photocopy, that the photocopy was a true and accurate copy of the original, and that he lost the original after the grandson gave it to him for safekeeping.
On October 18, 2022 the court admitted the photocopy of the will into probate, finding that the grandson sufficiently established its validity and noting that the presumption of revocation did not arise because the will was not lost while in decedent’s possession.
For assistance with New York estate administration, contact Probate Attorney, Robert Friedman at (585) 484-7432.