Lost the Original Will? Where There's a Will There's a Way
We are live! But not forever.
Trust and Estates practice has a uniquely global demographic inevitability: On a long enough timeline, the survival rate for everyone is, well, zero. Unless maybe you had your head cryogenically frozen or something like that.
Everyone has heard of wills. Wills are good to have. You can download them off Google, click on “Wills on Wheels” for a home visit or just go to a lawyer. The important thing is to have one. And it is very important that when that dark inevitability becomes a reality, and you’re not around to answer the question, “Hey, where ya keepin’ that old will of yours?", that someone knows where that original will is.
In this week’s case, a will was done and the original was given to a family member. Everything’s good, right? Wrong. They lost the original. Couldn’t find it anywhere. Now what?
Provedencia, died a widow at the age of 91. It was 2018. Provedencia was survived by a son, a daughter, and 2 grandchildren. Brothers: Mark and Tommy.
In 1998, Provedencia had arranged to have a will prepared. The older brother, Mark, was named as the executor of the will. When Mark’s grandmother passed away, he immediately went to a lawyer who practices in Surrogate’s Court, where wills are approved or disapproved.
LAWYER: Do you have the original will?
MARK: No. Only this copy. Is that going to be a problem?
LAWYER: Maybe. You see, in New York, an original will that can’t be found is presumed to have been revoked by law.
LAWYER: Meaning, that your grandmother decided to change her mind about how her assets would be distributed.
MARK: So me and my brother are out of luck?
LAWYER: Not necessarily. Tell me what you know about the original.
MARK: My brother, Tommy, was with me when my grandmother give me the original and a copy of the will. A year later, in 1999, I gave Tommy the original will to hold, but not the photocopy.
LAWYER: Where did Tommy keep the original?
MARK: He kept the original will at his home in an accordion file with other important papers. But after our grandmother died, Tommy checked the accordion file and the will was not there. Do we have a shot?
LAWYER: We have enough to bring the copy to Surrogate’s Court. Let’s see what happens.
Testimony at Surrogate's Court
JUDGE: Did your grandmother have access to your accordion file at your home?
TOMMY: No, Your Honor.
JUDGE: Did your grandmother ever mentioning changing her will in any way?
TOMMY: No. She always talked about the will and her desire to have Mark be her estate’s executor.
JUDGE: And is this copy a true and complete copy of the original will?
TOMMY: It is, Your Honor. I swear.
JUDGE: The copy bears the grandmother’s signature and contains an attestation clause signed by two witnesses who also provided affidavits, which state that an attorney supervised the instrument’s execution and that the grandmother appeared in all respects competent to make a will.
Also, annexed to the will is a self-proving affidavit which was signed by the witnesses on the date the instrument was executed.
Based upon the testimony of two witness with personal knowledge that the copy is an exact replica of the original will and that the grandmother never indicated that she wanted to revoke the will, the copy will be probated as if it were the original.
Tommy and Mark were successful because they were able to explain to the court the history of the original will. It is very important to have a will. It is just as important to be able to find that will when the time comes. But remember, if the original will cannot be found, all is not lost.
See you next time.
Read more about the recent case here.
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Joseph D. Nohavicka
With over 25 years of experience in the law, Joseph D. Nohavicka (Joe) is fully-qualified to take on any kind of case at any given moment. Joe’s practice focuses on employment, commercial, insurance, ethics, criminal, and general appellate trial and pre-trial litigation.
Joe is acknowledged in the profession for his performance in the courtroom, but he is also a prolific legal commentator with multiple publications in the prestigious New York Law Journal and the New York State Bar Journal.