In a case before Surrogate’s Court Judge Peter Kelly in Queens County, the children of decedent sought to probate a photocopy of a will. A hearing was held before Surrogate Peter Kelly as to whether a photocopy of a lost will could be submitted to probate. The general rule with regard to lost wills is there is a presumption the person who made out the will destroyed the will and therefore a photocopy of the will is usually not allowed to be probated.
Original Will Destroyed
There was testimony of witnesses the original will was lost on the first floor of the decedent’s home which was destroyed during Superstorm Sandy. Justice Peter Kelly found the children of the decedent clearly and convincably proved the original will was not revoked by their father or at their father’s directions but was destroyed by the force of nature. Justice Kelly therefore ruled that the copy of the will offered was a true and complete copy of the decedent’s original will and could be admitted to be probated.
Conclusion
If a will is lost or destroyed through no fault of the maker of the will, it is possible to probate a copy of the will.
Elliot S. Schlissel represents clients in the drafting of wills, trusts and estates as well as the probating of wills. He can be reached for a free consultation at 800-344-6431 or emailed at Elliot@sdnylaw.com.
