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Appellate Court Decides Validity of Duplicate Wills


In re: Lewis NY Slip Op 04674

In this case, the decedent RL, left no will. Letters of Administration were issued to her parents. The parents had renounced their interest in the estate in favor of the decedent’s brothers, RL and JL. There was a piece of property that would have stayed in the family, but for a subsequent will that was admitted to probate. That will left her estate to her ex-husband and named him as the executor.

This case was brought to the court, not by the ex-husband (he was disqualified by divorce), but by RL’s former father in law, who was named as an alternate executor and beneficiary. The father in law was not disqualified under the laws of New York which governs the decedent’s real property. This property was the main and significant asset of RL’s estate. Both the decedent’s parents and brothers filed objections.

During the hearing, the decedent’s ex-husband stated that the will was created as a mirror will. The wills were drafted on the same day in an attorney’s office many years ago (1996). They had made four copies, and kept one at each of their residences, and kept a copy at the husband’s parent’s house as well.

MB was a longtime, trusted friend of RL. The decedent had given legal and medical powers of attorney and had taken care of the decedent when she was recovering from alcohol addiction after the divorce. MB testified that the decedent made a new will at that time. This will would have cancelled all previous wills, though it could not be found.

The surrogate stated that they had an issue with this will truly reflecting the decedent’s wishes, as it was drafted 10 years ago. MB did not witness the execution of the most recent will. The court said that without anyone to witness the execution of the later will, it could not be given effect, even for the purposes of revoking the original 1996 will.

The Appellate Court affirmed the surrogate’s decision. A motion for leave to appeal was granted.

On appeal, the court said that the denial of the later will was correct. The court relies on Estates Powers and Trusts 3-4.1 (a)(1)(b), as was relied on the Matter of Coffed (46 NY 2d 514, 519 1979). In this case, it is stated that revocation an earlier will can be done by executing a subsequent document with proper formalities. This requirement is necessary to discourage fraud.

While this ruling was correct, it wasn’t properly established that the 1996 will was indeed valid, and it should have been admitted to probate.

The law states that a will can be revoked by a writing executed in the manner of a will, but also by the testator physically destroying it with the intent to revoke it. This act will revoke the will even when there are multiple copies in existence. The court has said that there is a strong presumption that the testator destroyed the will, because it couldn’t be found.

In the present case, there were 4 wills, none of which stayed with the decedent after her divorce. The fact that it could not be found demonstrates a presumption that it was destroyed. The court said that destroying a will revokes it, even if there are outstanding duplicate copies (Crossman v. Crossman 95 NY 145, 152). Once this presumption is raised, it stands in place of affirmative proof and needs to be rebutted by the will’s proponent.

In this case, none of the copies were found or accounted for. The petition states that the remaining 3 were only copies of the original, but the uncertain status of these documents was never addressed or resolved.

Where there are multiple copies of a will, the surrogate should ensure that all copies are present to verify that a copy was not destroyed and thereby revoked.

The court remands the case to the surrogate court.

Probate matters can be complicated, particularly if the proper documentation isn’t in place. If you have a question regarding a probate matter, contact Stephen Bilkis and Associates for a free consultation at 1-800-NYNYLAW. There are offices in Manhattan, the Bronx, Brooklyn, Staten Island, Queens, Suffolk County and Nassau County to serve you.

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