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Decedent Claims that Mother’s Will Was Lost


A New York Probate Lawyer said that this is a proceeding to establish a lost will pursuant to Surrogate’s Court Act, § 143. The testimony of the two subscribing witnesses establishes that decedent executed a will on or about February 27, 1948, in full compliance with the provisions of Decedent Estate Law, § 21 and that at that time he was of sound mind and under no restraint.

The attorney-draftsman, who was also one of the subscribing witnesses, testified that the will was turned over to decedent’s son for safekeeping immediately upon its execution. He further testified that he made an exact carbon copy of the original will which he conformed and kept in his files. The said carbon counterpart has been offered for probate by petitioner as decedent’s will.

The decedent’s son testified that he kept the original will for safekeeping at all times since its execution in his home. He further testified that decedent never had access to the will and never came to him for it. During the period that decedent’s son had the will for safekeeping he moved his place of residence twice. After decedent’s death he made a search for the will among the records and files in his home and place of business but found no trace of it. He further testified that his search revealed that in addition to decedent’s will other papers including his own will were lost.

The evidence establishes that the decedent never had possession of the will after its execution and delivery to his son for safekeeping. The facts in the record further establish that the will was either in existence at the time of his death or that it was accidentally lost or destroyed in his lifetime without his knowledge or consent. Under such circumstances the law deems the will to have been constructively fraudulently destroyed as to decedent and the legal result is the same as if the will was in existence at the time of his death.

The conformed carbon imprint filed by petitioner will be admitted to probate as decedent’s will. The decree will incorporate the provisions of said instrument. Submit decree.

In another case, a lawyer offered for probate is an instrument on which the decedent’s signature appears in two places, both below the dispositive provisions of the instrument. To the left and below decedent’s first signature appears the typewritten word, ‘Witnesses:’ below which appears the signature of the first witness and the date, ‘9/27/50.’ Below this and to the right decedent’s second signature is written. Again below and to the left of decedent’s second signature appears the signature of the second witness and the date, ’10/5/50.’ The testimony adduced shows that both witnesses were present on September 27, 1950 when decedent executed the instrument in their presence, said the instrument she had signed was her will and asked both of them to be witnesses thereto. The first witness affixed her signature as an attesting witness at that time in the presence of the decedent and also in the presence of the second witness. The second witness did not sign as an attesting witness at that time because he wanted another person to be a witness. A few weeks later decedent became impatient. She again requested the second witness to sign the instrument as a witness to her will. Decedent again signed the paper at the request of the witness who, according to his testimony, then signed his name as a witness to both of decedent’s signatures then appearing on the instrument.

The Court finds on all the proof that the second witness at the time of the fixation of his attesting signature to the propounded instrument intended to and did affix his signature as an attesting witness to the instrument and to both of decedent’s signatures appearing thereon. The Court is further satisfied on all the proof that the propounded instrument was executed by the decedent in conformity with the provisions of Section 21 of the Decedent Estate Law and that at the time of execution she was of sound mind, competent in all respects to make a will and free from restraint. Probate is therefore decreed. Submit decree.

If a will was lost, seek the immediate legal advice of an experienced lawyer from Stephen Bilkis and Associates in order to know the process on how to deal with a loss will in a probate proceeding.

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