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Petitioner Requests Probate of Will Pursuant to SCPA 1407


This is an uncontested proceeding to probate a copy of the last will and testament of the decedent. The will is dated March 2, 1981, the original of which cannot be located; the decedent died April 4, 1981. The petitioner is the decedent’s daughter-in-law, the surviving spouse of the decedent’s post-deceased son. At the time of her death in 1981, the decedent’s only distributees were her son and her estranged spouse. She resided in a house owned by her estranged spouse. The decedent’s only asset was a home on the same block which was then occupied by the son and his family. The propounded instrument leaves the entire estate to her son. Petitioner alleges that after the decedent’s death, the son advised her that the decedent had left the residence in which they were residing to him. She also claims that she was not aware that any steps needed to be taken regarding the property until after the son’s death in April 2005, when she attempted to place the house on the market for sale.

A waiver and consent has been filed by the executor of the estate of the decedent, decedent’s estranged spouse who post-deceased the decedent. A renunciation and waiver and consent have also been filed by the son of petitioner and decedent’s son.

Pursuant to SCPA 1407, a lost or destroyed will or codicil may be admitted to probate only upon establishing: (1) that the will has not been revoked; (2) proper execution; and (3) the provisions of the missing will. It appears that the execution of the original instrument was supervised by an attorney permitting the inference that the statutory requirements were met (Matter of Spinello, 291 AD2d 406 [2002]), thus satisfying the requirement of proof of due execution. The court is further satisfied that the original instrument’s provisions have been established by a photocopy which is a true and complete copy of the original instrument as executed (SCPA 1407[3]).

As to revocation, the court notes that the will was executed only about one month prior to the decedent’s death from pulmonary fibrosis. Because she was estranged from her husband, her son was the only natural object of her bounty and the will leaves the entire estate to him. At some point after the decedent’s death, and his family moved into the decedent’s former residence and the petitioner continues to reside there today. Thus, while the decedent’s death was many years ago, no search was made for her will until recently. The courts have recognized the fact that a photocopy of an executed will found in decedent’s papers after death is some evidence of non-revocation (Matter of Mittelstaedt, 278 App. Div. 231 [4th Dept. 1951]; Matter of Herbert, 89 Misc 2d 340 [Sur Ct, Nassau County 1977]; Matter of Papadopoulos, NYLJ Dec. 14, 2005, at 28, col. 5 [Sur Ct, Kings County]). Here, the will was executed in the decedent’s home two days before her admission into the hospital where she died one month later. The court finds it extremely unlikely that the decedent, knowing that her death was near, would go to the trouble of having a will prepared and executed, which left her estate to her only child, and then destroy the will within 48 hours. What seems infinitely more likely is that the original will was accidentally lost or destroyed, either when the home was cleaned out after the decedent’s death, or in the ensuing 27 years since then.

Accordingly, the court held that the copy of the decedent’s will dated March 2, 1981 shall be admitted to probate (SCPA 1407) and letters of administration, c.t.a. will issue to the petitioner upon her duly qualifying (SCPA 708).

If you want to have a codicil be probated, seek the legal representation of Stephen Bilkis and Associates in order to handle your day in court.

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