There are many formalities required when properly executing a will. When these are not followed, there is a significant risk that the will cannot be admitted to probate. That means the decisions you made in designing your estate plan will not be implemented and instead, your assets will be distributed under intestate laws as if you did not have a will at all. A recent case in New York highlights how a simple error, even when made in the name of caution, can have serious repercussions. The question addressed is: What happens if someone signs more than one original will (even if the provisions are identical)?

With many legal documents, it may be common, and even recommended, to sign several originals (in case one is lost, etc.). When executing your will, however, being cautious by signing two original wills, can create unintended difficulties. As illustrated by a case decided by the New York Appellate Division, Fourth Department, you should only sign one original will to avoid potential future complications.

In the case of Estate of Lewis, a question arose as to whether the decedent had left her attorney’s office with one original will and multiple copies of the signed document, or whether she in fact had signed four separate original wills. This was a crucial issue because it affected whether the will had ever been revoked. In 2010, Petitioners sought to admit a 1996 will to probate which would have left decedent’s entire estate to the father of her ex-husband. Objections were raised on the grounds that the will had been revoked, a question which ultimately turned on how many originals of the identical will had been executed.

One of the methods by which someone may revoke a will after executing it is to destroy the original document by “burning, tearing or cutting.” etc. (see EPTL 3-4.1). Where it can be proved that a will was executed, and it cannot be located after a thorough posthumous search, the Court presumes that the will has been revoked. This issue is more complicated where the existence of multiple original wills is established, as the petitioner must then address the whereabouts of each original to address the possibility of revocation. In other words, if the decedent only signed one original and the rest were photocopies, then the one original of the will found can be admitted to probate. However, if the decedent signed 4 originals, then the petitioner must establish the whereabouts of each of the 4 copies. If any of them are missing and unaccounted for, then there is a presumption that the decedent revoked the will by destroying one of the originals.

Estate of Lewismade it to the New York Court of Appeals, which in 2015 held that before the court could decide whether to admit the 1996 will, the petitioner had to rebut the presumption that because of the evidence presented regarding the duplicate original wills, which could not be located, the will was presumed to have been revoked. The case was sent back to the Surrogate’s Court for additional proceedings.

Ultimately, the petitioner was able to rebut the presumption that the will was revoked with other evidence. As a result, the Surrogate’s Court found the 1996 will was found to be the only original will of the decedent, and it was admitted to probate. That determination was ultimately affirmed by the Appellate Division, Fourth Department in 2018, 8 years after the will was first submitted for probate! This delay was almost entirely the result of the existence of possible multiple original wills.

If you have or are planning to execute a will, it is important that you do not sign multiple originals! You should sign one original and can make photocopies as needed. You may also want to consider leaving the original with your attorney to store for safekeeping, and to keep a copy in your files, together with the contact information of the attorney who holds the original.

We assist clients with developing a complete and effective estate plan and pay attention to both the big picture items, down to the (seemingly) smaller details (such as overseeing a proper execution ceremony). If you want to discuss your will, trust or estate planning needs, contact us for a consultation.