New York Probate and Estate Administration Lawyer Blog
On 10 May 1977, a decedent who is an attorney died. On 27 June 1977, letters of administration (estate administration) were issued to the Public Administrator, County of Nassau. He received the keys to the decedent’s residence from a Nassau County police detective on 11 May 1977 and made a thorough search of the residence. The public administrator found a sealed envelope, among other things, bearing the words “Copy of Deed to Lutheran Cemetery,” “Copy of Last Will and Testament” (carbon copy) bearing the decedent’s signature. On the back of the envelope, written across the flap was the decedent’s signature.
The objectants, three (3) of the cousins named in the instrument and five other individuals whose status was contested by the proponent in the instant case, conceded that the document was written in the decedent’s handwriting. No evidence was offered to prove that the document was a carbon copy although the proponent herself alleged that it was a carbon and not a ribbon copy. The back of the last page was blank except for the following handwritten words: “Copy of Last Will and Testament” and “Original in Safe Deposit Box in Jam. Savings Bank.”
The instrument provided for the disposition of real property and bequeathed $300.00 to each of the decedent’s eight cousins and the residuary estate to two of the cousins. It appointed the two cousins as executors of the estate.
A New York Probate Lawyer said at the time the decedent’s death, the safe deposit box at the Jamaica Savings Bank was no longer rented. An inspection of the decedent’s safe deposit box at the National Bank of North America in Williston Park also failed to disclose any instrument purporting to be the last will and testament of the decedent or a copy thereof.
Was there a revocation of a six-page handwritten document dated 17 June 1960 when only an alleged carbon copy of which has been offered for probate (estate litigation or will contest) as the last will and testament of the decedent?
In the case at bar, the witnesses, whose names were printed on the instrument offered for probate, testified regarding the execution and attestation of the decedent’s will in 1960, the signing of a copy of the will by the decedent, in their presence, and the retention of both the original and the copy by the decedent. It was the proponent’s contention that the instrument offered for probate was a duplicate original rather than a copy of the original will and that the existence of a duplicate original overcomes the presumption of revocation; and, in the alternative, that the presumption of revocation is rebutted by evidence that the decedent retained the carbon copy among her important papers and treated the copy as an original. In support of the proponent’s allegations to prove non-revocation, offered into evidence were – a letter from the decedent dated April 1968 (addressed “To Whom It May Concern” stating that executrix of her estate) and an envelope (labeled “Open in case of death or supreme emergency”) containing the decedent’s telephone book and Personal Record and Data Book.
Suffolk County Probate Lawyers said that under the rules, where a will is last known to be in the possession of the decedent and is not found at his death, the presumption arises that the decedent himself destroyed the will animo revocandi. This presumption of intentional revocation, however, may be rebutted by circumstantial evidence. Where the proponent of a will cannot produce the executed ribbon copy but produces a fully executed carbon copy which was in the decedent’s possession at the time of his death, the presumption of revocation is overcome. Here, there was no evidence that the witnesses, whose names were printed on the carbon copy signed the copy.
For the execution and attestation of wills, it is required that a will must be signed at the end by at least two witnesses. Westchester County Probate Lawyers said the privilege of informal testation is granted only to mariners at sea and military personnel, thus, cannot be applied in the instant case. Since there is no proof that the decedent satisfied these requirements, the conclusion must be that the instrument was not executed with the necessary formalities and is at best a conformed copy of the original. The presumption of revocation is therefore operative.
Further, it has been ruled that the retention by the decedent of a reproduced copy of his will along with an original codicil executed subsequent to the execution of the will was held to rebut the presumption of revocation. No such circumstances exist in the present case. The words on the back of the carbon copy explicitly stated that the original will was located in a safe deposit box. Evidently, the decedent did not believe that the carbon copy offered for probate was her original will and she did not have any intention for it to be accepted as such.
In addition, declarations of a deceased concerning revocation or non-revocation are only admissable as part of the res gestae, the reason being that it is likely that a decedent may have attempted, during his lifetime, to “silence importunity and elude questions” concerning the testamentary disposition of his property and therefore statements made to third parties concerning his will have little credibility. This reasoning applies with equal force to statements in writing. Written declarations of a decedent which are not received as part of the res gestae are inadmissable on the question of revocation. In any event the letter if admitted into evidence, at best might prove non-revocation as of 1968, more than nine years prior to the decedent’s death. The 1968 letter did not constitute a republication of the 1960 instrument. For it to be such, it is required that there be a re-execution and re-attestation for republication of a prior will.
The proponent here failed to offer sufficient proof to rebut the presumption of revocation. Consequently, the petition for probate was denied.
Have you executed a will yet? Or you know someone who wants to? Be prepared and secure your assets. Don’t be the person who executes one but later rendered ineffective and leaves confusion to the heirs. At Stephen Bilkis & Associates, we do what’s best for you with strict conformity with the law. Our Nassau County Estate Lawyers know the right procedures. Estate administration is our expertise. Consult with our Nassau County Estate Litigation Attorneys.