The issue before the Surrogate’s Court is whether the petitioner made enough of an effort to locate a lost will before petitioning the court to proceed with an intestate administration.
In the case of In re Estate of Karp, after the death of R. Karp, a “paper writing” of Karp’s 1995 will was found, but the original was not found. It appears as if the will that was found was either a copy of the original or a draft of the will that was eventually executed. Regardless, the document found was not the duly executed last will and testament of R. Karp. The petitioner, who was also one of the decedent’s distributees, asked that the court not admit that will to probate. Instead, the petitioner asked that the court appoint her as the administrator. In doing so, the court would have to find that R. Karp died intestate. Because she has an interest in the decedent’s intestate estate, under SCPA § 1002 the petitioner would be entitled to be appointed administrator.
Under the 1995 will, there were 21 beneficiaries. However, not all of the 21 beneficiaries were also distributees. There were only 5 distributees, included the petitioner. If the will is not probated then most of the beneficiaries, including the objectants, would not be entitled to any part of the estate.
One of the reasons that the objectants challenge the petitioner’s petition is that they contend that the petitioner did not make enough of an effort to locate the decedent’s will. It is not disputed that the decedent did execute a will in 1995. In fact, the petitioner located the attorney who drafted it, but he was not able to produce the original. The issue before the court is how much effort must the petitioner exert in attempting to find the lost will. In addition to contacting the attorney-drafter, the petitioner also conducted a rather exhaustive search of the decedent’s two homes, her furnishings, her documents, and her safety deposit boxes. The court was satisfied with the petitioner’s efforts to located the will. The court noted that the petitioner conducted an extensive and diligent search and that it was not necessary for the petitioner to “leave no stone unturned.” The court concluded that the petitioner met her burden of proving that the decedent left no valid will. Thus, the court ordered that letters of administration be issued to the petitioner.
An interesting aspect of Karp is that the proponents of the lost will did not petition the Surrogate’s Court to admit the lost will to probate under SCPA § 1407. Under certain conditions, the Surrogate’s Court will admit a will to probate that has been lost or destroyed. First, there must not be evidence that the will was not revoked. One way to revoke a will is to destroy it. The court must be convinced that the reason that no one is able to find the will is not because the decedent purposely destroyed it with the intent to revoke it. Second, the will must have been duly executed. If the will was never properly executed as required by New York law, then it was never valid. Third, there must be two credible witnesses who can testify as to the contents of the will. Even if there is proof that the will existed and was not revoked, it cannot be probated if no one recalls what it said. If two witnesses who are able to recall the contents of the will are not available, the court will also accept a true and complete copy or draft the will.
It is not clear from the opinion why the objectants did not attempt to have the copy of the will admitted to probate under the rules of SCPA § 1407, but it is possible that the objectants would not have been able to meet the requirements of SCPA § 1407.