Deciphering New York’s Lost Will Proceeding and the Presumption of Revocation

SearchingIn the state of New York, the probate process can become complex when a decedent’s last will and testament cannot be found. In such cases, a “lost will proceeding” may be initiated to prove the existence and validity of the alleged will.

However, the New York Surrogate’s Courts adhere to the “presumption of revocation” when dealing with lost wills. This article will explore the lost will proceeding, the presumption of revocation, and how these two concepts interact in the state of New York.

Lost Will Proceeding

When a will is missing, interested parties may commence a lost will proceeding to prove the contents of the alleged will and establish its validity. In New York, this process typically involves the following steps:

  1. Petition:
    An interested party, such as an heir, beneficiary, or executor, must file a petition with the Surrogate’s Court in the county where the decedent resided. The petition should include a copy of the lost will (if available), an explanation of the circumstances surrounding its disappearance, and any relevant evidence supporting the existence of the will.
  2. Notice:
    The petitioner must provide notice of the proceeding to all interested parties, such as the decedent’s heirs, beneficiaries, and creditors, as well as the New York State Attorney General if any charitable organizations are named in the alleged will.
  3. Hearing:
    The Surrogate’s Court will schedule a hearing to review the evidence and hear testimony from witnesses. During this hearing, the petitioner must prove the existence, execution, and validity of the lost will.
  4. Decision:
    After considering the evidence and testimony, the court will decide whether the lost will is genuine and should be admitted to probate. If the court admits the will to probate, the estate administration process can proceed as if the original will had been located.

Presumption of Revocation

In New York, when a will is lost, destroyed, or cannot be found after a decedent’s death, the Surrogate’s Court applies the “presumption of revocation.” This legal principle assumes that the decedent intentionally destroyed the will with the intent to revoke it.

To overcome the presumption of revocation, the petitioner must provide clear and convincing evidence that:

  1. The will was executed with the required formalities and properly witnessed.
  2. The will’s contents are substantially the same as the lost or destroyed document.
  3. The decedent did not destroy the will with the intent to revoke it.

Proving these elements may involve presenting a variety of evidence, such as drafts of the will, testimony from witnesses who saw the will after the death of the decedent, and any relevant correspondence or documents.


Navigating a lost will proceeding in New York can be a complicated and challenging process, primarily due to the presumption of revocation. The burden of proof rests on the petitioner to demonstrate that the lost will was valid and that the decedent did not intentionally revoke it.

To successfully overcome the presumption of revocation, petitioners should gather as much evidence as possible to support their case, including documentation, witness testimony, and any relevant correspondence. It is advisable for petitioners to consult with an experienced estate attorney who is well-versed in New York probate law to guide them through the intricacies of the lost will proceeding.

The outcome of a lost will proceeding can significantly impact the distribution of a decedent’s assets and the interests of heirs, beneficiaries, and creditors. By understanding the lost will proceeding and the presumption of revocation, interested parties can better prepare themselves for the challenges that may arise in the probate process and ensure that their rights and interests are protected.

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