Detailed answer — How New York handles a missing or damaged original will

When the physical original will cannot be produced because it was lost or damaged while being mailed to the surrogate’s court, New York law focuses on two questions: (1) can the maker’s testamentary intent and the will’s contents be proven without the original, and (2) what procedures the surrogate’s court requires to admit a non-original or copy to probate. The answers determine whether the wishes in the lost or damaged document can still control distribution of the estate.

Key legal background

New York’s probate rules are found in the Estates, Powers & Trusts Law (EPTL) and the Surrogate’s Court Procedure Act (SCPA). The surrogate’s court prefers to see the original will, but it can admit a will’s contents without the original if the court is satisfied the original has been lost or destroyed and the offered proof establishes both the contents and valid execution of the will. For general statutory texts, see the EPTL and SCPA resources for New York:

• New York Estates, Powers & Trusts Law (EPTL) — legislative text
• New York Surrogate’s Court Procedure Act (SCPA) — legislative text

Common outcomes and the court’s approach

There are three common situations when the original will is lost or damaged in the mail:

1. The original is lost and cannot be produced. The court can admit a copy of the will (or other secondary evidence of its contents) to probate only after the petitioner meets the court’s burden to prove both (a) the will’s contents and (b) that the original is indeed lost and was not intentionally destroyed by the maker with intent to revoke. This typically requires sworn testimony from credible witnesses (including subscribing witnesses, if available), copies of the will, and evidence showing attempts to locate the original.
2. The original was damaged in transit but still mostly legible. If the court can read enough to identify the signature, the maker’s intent, and necessary formalities, the damaged original may still be admitted. The court may inspect the document and hear testimony about how and when it was created and mailed.
3. The original is destroyed or returned to sender unreadable. All of the same proof principles apply; destruction raises a question whether the maker intentionally revoked the will. Evidence that the will was mailed to the court and lost en route typically supports the position that the maker did not intend revocation.

What the petitioner must prove to admit a lost or damaged will

Practical elements the court will expect include:

• Clear evidence of the will’s contents — a photocopy, scan, or certified copy of the document. Keep all copies and metadata (senders/recipients, timestamps).
• Proof of due execution — testimony or affidavits from the attesting/subscribing witnesses or others who can describe the maker signing the will in the witnesses’ presence.
• Proof the original is missing and not intentionally destroyed — evidence of mailing (tracking numbers, postal receipts), statements from postal carrier or courthouse staff if available, and an explanation of a reasonable search for the original.
• Affidavits or witness testimony to rebut any claim that the testator revoked the will (for example, by writing ‘void’ on it or expressing revocation while competent).

Procedure to follow in New York

Steps commonly taken:

1. Preserve all evidence of mailing: keep tracking numbers, certified mail receipts, photos of the damaged envelope/document, and any correspondence with the post office or court clerk.
2. Contact the surrogate’s court immediately. Tell the clerk what happened; follow their guidance on how to proceed and what the court expects you to file.
3. Locate and secure all copies (scanned, handwritten, escrow copies held by attorney or bank). Get certified copies if you can.
4. Obtain affidavits from the subscribing witnesses or other witnesses who can testify about execution and contents. If the will included a self-proving affidavit, locate the notary or witnesses who signed it; their testimony can help prove execution even if the original is missing.
5. File a petition in surrogate’s court to admit the copy (or a petition to prove lost will). Serve required notice to interested persons as directed by the court and the SCPA. The court will set a return date; interested parties can object and request an evidentiary hearing.
6. Be prepared for an evidentiary hearing where the court will weigh the credibility of witnesses and the sufficiency of the documentary proof. If the court is satisfied, it may admit the copy or the evidence as a will and issue letters testamentary or letters of administration with the will annexed, as appropriate.

What happens if the court is not satisfied?

If you cannot prove the document’s contents and valid execution to the court’s satisfaction, the surrogate may decline to admit the copy. If that occurs, the estate could be treated as intestate (distributed under the rules of intestacy) or administration may proceed without the contested will. The risk of intestacy or loss of the intended distribution is why proper proof and early action matter.

Practical example (hypothetical)

Suppose Jane signed a will leaving assets to a niece. An attorney mailed the original will to the surrogate’s court, but the mail carrier returned an empty, torn envelope. Jane’s attorney has a scanned copy, and two subscribing witnesses can swear they saw Jane sign the document. The attorney collects the USPS tracking info, obtains sworn statements from the witnesses and from the attorney who drafted the document, and files a petition asking the surrogate to admit the copy of the will and to grant letters testamentary. The court may admit the copy if it finds the proof persuasive that the original was lost and the copy accurately states Jane’s testamentary intent.

When the postal carrier or court may be responsible

If the document was lost or damaged due to the negligence of the postal carrier or courthouse handling, that fact can support the petition that the loss was accidental rather than an intentional revocation by the maker. Evidence from the carrier or clerk about what happened can be relevant to the surrogate’s decision.

Why you should consider getting legal help

The surrogate’s court rules and evidence standards can be technical. Preparing affidavits, assembling documentary evidence, and meeting notice requirements are important to a successful petition. An attorney experienced in probate filings can help organize the proof, draft the petition, and represent you at any hearing.

Relevant New York resources:

• EPTL (New York Estates, Powers & Trusts Law)
• SCPA (Surrogate’s Court Procedure Act)
• New York State Surrogate’s Courts (general information)

Helpful Hints

• Act quickly. Contact the surrogate’s court as soon as you learn the original is missing or damaged and preserve all evidence of the mailing.
• Keep every copy. Scans, photocopies, email attachments, and drafts may all help prove the will’s contents.
• Get witness statements. Subscribing witnesses and the drafting attorney can provide affidavits about execution and content.
• Document the loss. Save postal tracking numbers, receipts, and any communications with the post office or court clerk. Take photos of any damaged envelope or document pieces.
• Follow court rules. The SCPA sets notice and filing requirements; missing these can delay or jeopardize your petition.
• Prepare for challenges. Interested persons can object. Be ready to support your proof at a hearing.
• Consider counsel. A lawyer familiar with surrogate’s court practice can streamline the process and improve the chance of admitting the will’s terms.

Disclaimer: This article explains general principles of New York probate practice and is not legal advice. It does not create an attorney-client relationship. If you need advice tailored to a specific situation, consult a qualified attorney or contact the surrogate27s court for guidance.