HOW TO GET A COPY TO PROBATEWhen the Westchester County Surrogate declined to allow a copy of a lost will to probate, an appeal followed.
While there is typically a presumption that a unlocatable will was “revoked by destruction,” that general rule can be rebutted if it can be credibly established to the contrary. And to that end, it must be shown that the will was never revoked," its “execution …. proved in the manner required for probate of an existing will, and "[a]ll of the provisions of the will [must be] 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 this particular case, the application was supported by “the affirmation of the attorney-draftsperson, the affidavit of an attesting witness,” and an “unsigned copy of the decedent's lost will.” Since it was shown that the original version “was never in the decedent's possession,” that it had not been revoked, that it had been “duly executed,” and that the proffered copy was an exact replica of the original will, the Appellate Division, Second Department, thought the Surrogate had made a reversible error when the underlying petition was denied.
See … all is not lost. (Even after you’re dead.)
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