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CAN I PROBATE A PHOTOCOPY OF A MISSING WILL?

I assume everyone knows that you need the original Will in order to file it for Probate with the County Surrogate. We always stress to our clients the importance of storing the original Will in a safe place, and to let our office and your family know where it is being stored, whether that be in a safe deposit box, or a safe, or a fireproof box in the hall closet. Hiding original estate planning documents, such as a Will, that nobody knows about because they are so well-hidden that they can never be found by anyone is just as bad, if not worse, than having none at all! Photocopies or digitized copies are better than nothing, but are not “legal” in terms of being admitted to Probate.

 

So, what can you do if you find yourself in a situation where you have a photocopy of the Will for a recently deceased loved one, but just can’t find the original anywhere? Is the copy worthless? Can it possibly be admitted to probate?

Here is the problem in a nutshell: There is a presumption that the reason you cannot find the original Will is that it was revoked, torn up, shredded by the deceased, and therefore, no longer represents the deceased’s wishes.

In other words, if the original Will cannot be found, there is a legal presumption that the reason the original cannot be found is that it was revoked, AND THEREFORE, the Surrogate’s Office can NOT accept it for Probate.

Instead, we have to file an application with the Superior Court ordering that the Surrogate’s Office accept the photocopy. But, we have to overcome this “presumption of revocation.” We all know that proving a negative, in other words, proving that something did not happen, is difficult. Each case turns on its own facts, but examples of situations where the presumption of revocation might be overcome include:

  • The decedent died in a house fire and there is evidence that the Will was stored in the house.
  • A relative testifies that the Will was in that relatives possession for safe keeping, and they lost it, not the deceased.
  • The lawyer that was supposed to be holding onto the original Will for safekeeping has since retired to a small island off the coast somewhere in the South Pacifice and cannot be located.

Again, there may be other facts and circumstances that may be appropriate for a given situation, but the court will require proof to explain away the original Will’s disappearance.

As a practical matter though…

If all heirs and potential heirs agree to have the photocopy admitted into Probate, the Superior Court will rarely put up a fight and will order the photocopy to be admitted to probate without a trial on the merits of the case. But, it still requires the filing of a lawsuit, which is costly and time consuming. Our office handles cases exactly like this on a fairly regular basis.

The bottom line is this: If you find yourself in a situation where you have a photocopy of what you believe to be the decedent’s Last Will and Testament, and cannot find the original, it is not a lost cause. We can help. Our success rate is close to 100%.