Legal Question in Wills and Trusts in New York

Most orders and judgments appointing a guardian provide that the will must be filed with the Surrogate's Court in which the incapacitated person resides. The purpose of such a provision is, of course, to safeguard the will.

Your question does not make clear whether you ever saw or possessed the original of the will. If not, the first thing you should do is to contact the attorney who prepared the will. It is possible that the attorney retained the original. If you never saw the original will, it is quite possible that the incapacited person revoked the will. Most people do not realize that revocation of a will is not accompanied by a formalistic cerermony -- rather, a will is revoked by simply tearing it up and discarding it. There need not be (and usually there are not) any witnesses to the process of revocation.

When a will cannot be found, there is usually a presumption of revocation. However, sometimes there are circumstances that suggest that revocation did not occur. That is why the Surrogate's Court Procedure Act has a specific provision for the probate of a lost or destroyed will. SCPA sec. 1407 specifically provides that a lost or destroyed will may be probated in the same manner as an original if it is established that the will has not been revoked and if execution of the will is proven in the same manner as an existing will is proven, and if all provisions of the will are proven by at least two credible witnesses or by a copy or draft of the will that is proven to be true and complete.

Thus, even in the case of a lost or destroyed will, there is still the challenge of proving that the will was not revoked.

In your situation, the incapacitated person is still alive. You should first determine if the nature of the IP's incapacity would prevent her from credibly recalling whether the will was revoked. There is, ordinariily, no prohibition of a person for whom a guardian was appointed under Article 81 of the Mental Hygiene Law executing a will. Thus, you might consider having a new will executed that is identical to the lost will. The question is whether the IP has "testamentary capacity," which means that she knows the "natural objects of her bounty." That is a fancy way of saying that the will makes sense in terms of who are listed as legatees and if the person reasonably sought to bequeath her assets to such persons.

For example, if a wealthy person were to try to leave all of his his or her millions to a casual acquaintance, or, as sometimes happens, to his hor her home care aide, rather than a spouse or children, that would be illustrative of not knowing the natural objects of the decedent's bounty.

If the IP can execute a new will, you might also consider making a motion to the court that appointed you as guardian asking for specific permission to have a new will executed. While such a motion is not actually necessary, and you can have the will executed without any sort of judicial permission, it may be a good idea in that it will serve as a sort of judicial imprimatur of the IP's ability to make a will, particularly if a hearing is held at which the IP can and does testify.

A will executed by a person who was adjudicated as requiring an Article 81 guardian is, however, somewhat of an invitation for the will to be contested after the IP's death. That, of course, will depend on who, if anyone, was left out of the will or did not receive as much as he or she would have gotten if the IP died without a will.

However, it should be noted that it does not require great capacity to make a will. Oddly, it probably takes more legal capacity to subscribe to a magazine than it does to execute a will.

Having said that, however, it is obvious that each IP's particular circumstances will determine whether that person has the capacity to make a will.

If you do elect to have a new will executed, and assuming of course that the IP is sufficiently competent to do so, you might consider having the execution of the will videotapes so that the IP's capacity can be demonstrated. In this way, you may be able to stave off a challenge to the will later on.

Of course, if a new will is executed, have the original immediately filed with the Surrogate's Court.

Good luck to you.