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Saturday, April 6, 2019

Presumption of Revocation of Lost Will is Not Easy to Overcome

You must be very careful to store your Will properly, otherwise, if it cannot be found, the court is likely to consider it revoked and your assets will be distributed in accordance with intestacy rules.


In recent case In Re Scollan (2018), in which a valid Will could not be found, the court ruled that a presumption of revocation of the Will was not overcome.


There is a strong presumption that a Will known to be in the decedent's possession that cannot be located after the decedent's death was destroyed by the decedent with the intent to revoke. The retention of a copy of the Will by the decedent's attorney, decedent's statements regarding testamentary intentions, and suspicion that the Will was fraudulently destroyed (without supporting facts and circumstances) are not sufficient to overcome the presumption.


If you are afraid that your Will is at risk of being lost or destroyed (due to memory issues, the behavior of omitted beneficiaries, or any other reason), then your Will should be stored either in your attorney's office, a safe deposit box, or with a trusted friend. Do not keep the original in your own home.


Please contact Sverdlov Law PLLC at 212-709-8112 or ksverdlov@sverdlovlaw.com if you need help with probating a copy of a lost Will or any other probate and administration matters.


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Sverdlov Law's practice focuses on estate planning, probate and estate administration, Medicaid planning, elder law, and business succession matters.



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