A copy of a lost or destroyed will may be admitted to probate only where: (1) it is established that the will has not been revoked; (2) execution of the instrument is proved in the manner required for the probate of an existing will; and, (3) all of the provisions of the will are clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of the will proved to be true and complete. A strong presumption of revocation applies where an original copy of an executed instrument cannot be located after a testator’s death if that original was in the testator’s possession. Absent conclusive proof establishing that the original instrument was never in the decedent’s possession after its execution, there is a strong presumption that it was in the decedent’s possession and revoked by his act.
A Bronx, NY Surrogates Court SCPA 1407 petition was filed by the son of the decedent to probate, as a lost will, a photocopy of a will dated August 12, 2015. The decedent died on June 1, 2021 at the age of 63. In addition to the son, his distributees are a spouse and a daughter, both of whom consented to the application. The will was signed by the decedent, witnessed by two witnesses with a self-proving affidavit. The will leaves the entire estate to his surviving spouse, and if she should not survive him, to his issue per stirpes. The sole assets of the estate are two bank accounts with an approximate value of $1,000,000. In support of the application, the son annexed an affirmation from the attorney draftsman of the will stating that the original will was given to the decedent when he left his office the day it was executed. Affidavits of the son and spouse stated their belief that they knew the wishes of the decedent and that they do not believe that he ever have intended to revoke his will. There is no evidence that any person other than the decedent was in custody of the original will.
As the original cannot be found, a presumption arises that the decedent destroyed the will with an intention to revoke it. The presumption can be rebutted by clear and convincing evidence, but where the presumption is not overcome, the lost will may not be admitted to probate.
The Bronx, NY Surrogates Court ruled in Estate of Palladino that the proof amounts to mere speculation of lack of intent to revoke his will which is insufficient to meet the standard of clear and convincing evidence The probate petition seeking to admit the will copy was denied because the son failed to rebut that strong presumption with the evidence submitted on this application.
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