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Where a will that was in the possession of the testator could not be located, it was presumed to have been destroyed. In re the Estate of Faragiano, 46 Misc. 3d 646 (N.Y. Sur. Ct. 2014)


While this case primarily focused on an estate accounting issue, there was a secondary issue related to a revoked or lost will.  Under the laws of New York State, only a testator can revoke their own will. In order to revoke their will, the testator must do one of the following:

  1. Execute a new will
  2. Execute a document that clearly indicates the intention to revoke the will.  The revocation document must be executed with the same formalities required to execute a will.
  3. Rip up, burn, tear, or complete some other at of destruction


The decedent executed a will on May 14, 1996. However, only a conformed copy has ever been filed with the Surrogate’s Court.  The attorney who drafted the will as well as one of the witnesses confirmed that after the will was executed, the original was given to the decedent.

The question here is whether this is a case of a lost will or a case of a destroyed will.  In New York, if a previously executed will cannot be found and if the will was in the possession of the testator, there is a presumption that the will was destroyed.  See Matter of DiSiena, 103 AD3d 1077 (2013). Destroying a will is one way to revoke a will.  Here, because of the testimony of the attorney-draftsman and the witness that the testator had the original, the presumption that the will was destroyed applies.  This presumption can only be overcome by clear and convincing evidence that the testator did not revoke it during her lifetime.

At that point, there was a presumption that the testator revoked the will and there no evidence that it was not revoked. Accordingly, unless evidence is presenting to prove otherwise, the estate would be intestate.

Note that if the will was missing, and there was no evidence that it was in the possession of the testator, then there would not be a presumption that the will was revoke. The court’s assumption would be that it was lost. If there is a copy of the will, under very specific circumstances, the court may accept it and allow it to be probated.

In order to probate a copy of the will, the proponent of the will must prove that the testator had not revoked the will and that the will was properly executed. In addition, all provisions of the will must be clearly and distinctly proven by at least two credible witnesses or by a true and complete copy or draft of the will.


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