Lost Will Presumed Destroyed by Testator

A recent Appellate Division, Second Department court decision highlights an important aspect of the law of wills in New York.  In Matter of Winters, 923 N.Y.S.2d 730 (2d Dept. 2011), a decedent validly executed a will, but when he died his will could not be found.  Because his will could not be found, his son filed a petition in the Surrogate’s Court to obtain letters of administration for the estate of the decedent.  The decedent’s attorney, however, filed an answer and objections to the petition in which he alleged that the original will had be fraudulently destroyed during the decedent’s lifetime.  This attorney then cross-petitioned to admit a copy of the will to probate, but the Surrogate’s Court dismissed his petition.  The Appellate Division now affirms the lower court’s decision.

            According to the Court: “if a will, shown once to have existed and to have been in the testator’s possession, cannot be found after the testator’s death, the legal presumption is that the testator destroyed the will with the intention of revoking it.  This legal presumption may be overcome, and the lost will may be admitted to probate, if the party seeking probate establishes that the will was not revoked during the testator’s lifetime.”  The Court ultimately held that the decedent’s attorney offered no proof to support his contention that the will was fraudulently destroyed during the decedent’s lifetime, and therefore his petition should be dismissed.  According to the Court, the decedent’s attorney was merely speculating as to whether the will was fraudulently destroyed, and speculation alone is insufficient to overcome the applicable presumption.

Salvatore R. Marino, Esq.