For most things in life the original is better than its copy. In the context of wills and estate probate, the original is generally required. So, when may the heirs offer a copy of someone’s will to probate in New York?
In New York, a copy of the orignal will may be offered to probate if the administrator or executor can establish that: (1) the will was not revoked; (2) execution of the will was proved in the manner required for the probate of an original will; >and (3) all provisions of the will are clearly and distinctly proven by each of at least two credible witnesses or by a copy of the will proved to be true and complete. See New York Surrogate Court Practice Act § 1407.
Surrogate courts are not going to absolutely accept a copy for probate without strong proof of each of the foregoing elements because the law generally presumes that if there was no original, it was revoked by the person who died. That is, a will that is “shown to have existed,” and was in the testator’s possession at the time of their death, that will is presumed destroyed by the testator and, therefore, revoked. See In Re Evans, 264 A.D.2d 484 (2d Dep’t 1999). By introduction of the statute, the presumption may be “rebutted,” by showing all the three elements. Where the Testator had the last will and testament in her possession at death, the law takes extra steps to protect the presumption that the dead person did NOT intentionally revoke the will. Afterall, the testator cannot explain their desires.