Is a Damaged Will an Invalid Will? Part 1

We received a recent call in our office.  The caller’s father had passed away leaving a will that had been given by father to son to hold in his possession after Dad had signed it several years earlier.  Son retrieved the will after Dad’s passing in order to submit it the Surrogate for the purpose of having the Surrogate deem it to be the “official” last will and appointing Son as the Executor.  It was then that he discovered the will had been damaged.

Son had stored the will in a drawer.  When he retrieved it, he discovered that the drawer contained water.  It appeared that someone had spilled water and that it had been there for some time because pages of the will had become illegible.  When he attempted to separate the pages some of them simply disintegrated.  As a result portions of the original will were no longer readable or no longer existed.

Son had called the Surrogate’s office and received conflicting instructions on what to do.  At one point he was told he would need to file an application asking a judge to admit a copy of the will.  At another point he was told that because the will was destroyed, he would need to proceed as if there was no longer a valid will and instead file an estate administration action per state intestacy laws.

When I spoke with him, it was not entirely clear what he had told the Surrogate’s office about the circumstances surrounding the damaged will.  Instead, I focused on exactly what happened during the time Son had possession of the will in order to determine what course of action was necessary.

Next week I’ll tell you how I was able to sort it out.