Probating a Lost Will in New York: SCPA § 1407 Rules

A will that cannot be found can still be probated in New York, but only on stricter proof than an original. Surrogate's Court Procedure Act (SCPA) § 1407 sets three conditions, and the person offering the will must meet all three. If any one fails, the court will not admit the will, and the estate passes as if there were no will at all. This guide walks through each condition, who has to be served, how a photocopy or draft fits in, and what happens when the proof falls short.

What does SCPA § 1407 require to probate a lost will?

SCPA § 1407 allows a lost or destroyed will to be probated only if the petitioner proves non-revocation, proper execution, and the full contents of the will. The statute is short, and every word of it matters:

Note the word "and" between each condition. This is not a menu. A clean photocopy does nothing for the petitioner if the court is not satisfied that the testator never revoked the original. Two witnesses who remember the signing ceremony do nothing if no one can establish what the will actually said.

The statute covers both a will that is lost (no one can find it) and one that is destroyed (burned in a fire, shredded by mistake, damaged in a flood). In either case the original is not available to file, so the court requires the substitute proof described below.

How do you prove a lost will was not revoked?

The first condition requires the petitioner to establish that the will "has not been revoked". This is often the hardest part of a lost-will case, because a missing original raises an obvious question: did the testator destroy it on purpose?

New York law treats physical destruction as one of the ways a testator can revoke a will. Estates, Powers and Trusts Law (EPTL) § 3-4.1 lists the acts that count:

So the question for the Surrogate is whether the will went missing through some event other than a deliberate act of revocation by the testator, or by someone acting in the testator's presence and at the testator's direction. When another person destroys the will at the testator's direction, EPTL § 3-4.1 requires that fact to be "proved by at least two witnesses, neither of whom shall be the person who performed the act of revocation."

Evidence that tends to show the will was not revoked usually comes from the facts surrounding its disappearance. Examples we look for:

• Who last had the original, and where it was kept (a law office vault, a safe deposit box, a home file cabinet).
• Whether the original was ever in the testator's hands after it was signed.
• A documented accident: a house fire, a flood, an office move, a misfiled box.
• Statements by the testator, close to the time of death, that the will still reflected his or her wishes.
• Whether anyone who would gain from the will's absence had access to it.

No single item settles the question. The Surrogate weighs the whole record, and an objectant who benefits from intestacy will argue the opposite inference from the same facts.

How is execution of a lost will proved?

The second condition requires proof that the will was executed "in the manner required for the probate of an existing will". In other words, a lost will gets no shortcut on formalities. The petitioner must show the same signing ceremony that would be required if the original were sitting on the clerk's desk.

Those formalities come from EPTL § 3-2.1. The will must be signed at the end by the testator (or by another person in the testator's name, in the testator's presence and by his or her direction). The signature must be affixed in the presence of each attesting witness or acknowledged to each of them. The testator must declare to each witness that the instrument is his or her will. And the statute requires:

Proof normally comes from the attesting witnesses themselves. Under SCPA § 1404, at least two attesting witnesses must be produced and examined "if so many of the witnesses are within the state and competent and able to testify." When a witness has died, left the state, or cannot be found with due diligence, SCPA § 1405 lets the court dispense with that witness's testimony once the fact is shown "by affidavit or by any competent evidence". If one attesting witness has been examined and the other's testimony has been dispensed with, the statute permits the will to be admitted "upon the testimony of the attesting witness who has been examined without further or additional proof."

In a lost-will case, this means locating the witnesses early. If the will was signed at a law office, the supervising attorney and staff witnesses are usually the first call.

What if a copy of the will exists?

A copy or draft can satisfy the third condition, but only if it is "proved to be true and complete." The third prong of SCPA § 1407 requires that all of the provisions of the will be "clearly and distinctly proved", and the statute gives two routes:

1. Two credible witnesses. Each of at least two credible witnesses must clearly and distinctly prove all of the provisions. Witnesses who remember the general plan ("everything to the children") but not the specific bequests and fiduciary appointments may not be enough.
2. A copy or draft. A photocopy, a conformed copy, a scanned PDF, or the drafting attorney's final draft can carry this condition, provided the petitioner proves it is a true and complete version of the signed will.

Proof that a copy is "true and complete" typically comes from testimony from the person who prepared or kept it: the drafting attorney or a staff member who can explain how the copy was made and confirm it matches the signed original page for page. A draft with handwritten changes, or a copy missing a page, invites challenge.

Keep the limits in view. A copy addresses only the third condition. It does not by itself prove the will was never revoked, and it does not prove the signing ceremony. The petitioner still needs evidence on prongs one and two.

Who must be cited in a lost-will probate proceeding?

The same persons who must receive process in any probate proceeding must be served when a lost will is offered. SCPA § 1403 provides that "process must issue to the following persons if not petitioners", and the list includes:

• The distributees of the testator, meaning the relatives who would inherit if there were no will (SCPA § 1403(1)(a)).
• The named executor (SCPA § 1403(1)(b)), with an exception for a substitute or successor executor "where the designated executor is under no disability."
• Beneficiaries and fiduciaries under other wills of the same testator filed in the Surrogate's Court of the county where the propounded will is filed, whose rights or interests are adversely affected (SCPA § 1403(1)(d)).
• The state tax commission in the case of a non-domiciliary testator (SCPA § 1403(1)(g)).

Service on the distributees carries particular weight in a lost-will case. They are the people who inherit if the will fails, so they have a direct reason to contest non-revocation. Expect them to appear, ask questions, and in some cases file objections. Our guide to contesting a will in New York covers what the objection process looks like from the other side.

Because of the added proof and the likelihood of contested facts, a lost-will proceeding can take longer than an uncontested probate of an original. Our article on the Surrogate's Court probate timeline explains the ordinary stages; a lost-will case may add hearings on top of them.

What happens if the lost will cannot be proved?

If the petitioner cannot satisfy all three conditions of SCPA § 1407, the will is not admitted, and the property it would have controlled passes under New York's intestacy statute. EPTL § 4-1.1 opens with that rule:

The intestacy order then follows the family tree. Under EPTL § 4-1.1(a):

• Spouse and issue: "fifty thousand dollars and one-half of the residue to the spouse, and the balance thereof to the issue by representation."
• Spouse and no issue: "the whole to the spouse."
• Issue and no spouse: "the whole to the issue, by representation."
• One or both parents, no spouse and no issue: "the whole to the surviving parent or parents."
• Issue of parents, no spouse, issue or parent: "the whole to the issue of the parents, by representation."

The practical result can be far from what the testator intended. A friend, a partner the testator never married, or a charity named in the lost will receives nothing under intestacy. A sibling the testator deliberately left out may take a share. For the full picture of how an estate is handled without a will, see our article on dying without a will in New York.

What should you do if you cannot find the original will?

Search thoroughly and preserve every copy before filing anything in Surrogate's Court. The strength of a lost-will petition depends on facts that fade quickly: who saw the will last, where it was kept, and what the testator said about it.

1. Check the testator's home papers, safe deposit box, and the office of the attorney who drafted the will.
2. Keep any photocopy, scan, or draft exactly as found. Do not mark it up or staple it to other documents.
3. Write down, while memories are fresh, who handled the original and when.
4. Identify the attesting witnesses and confirm they can be located.
5. Identify the distributees, since they must be served under SCPA § 1403.

If you have a copy of a will and the original is missing, Estate Law New York can review the evidence and tell you how it measures against SCPA § 1407 before you file. Schedule a free consultation with Alan Vaitzman, Esq., at our office on the 17th Floor, 299 Broadway, New York, NY 10007, through our contact page.

Frequently Asked Questions

Disclaimer: This article is for informational purposes only and does not constitute legal or tax advice. No attorney-client relationship is formed by reading this publication. Prior results do not guarantee a similar outcome. Reviewed by Alan Vaitzman, Esq. — Managing Attorney at Estate Law New York. Working in estate law since 2017. J.D., New York Law School (2021); B.A. in Psychology, Brooklyn College (2016). Admitted to practice in New York (Reg. No. 5989199), New Jersey, and Florida (Bar No. 1040681). Office: 299 Broadway, 17th Floor, New York, NY 10007.