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Court Questions Validity of Will


This case is being heard in the Surrogate’s Court of Kings County. The case before the court is a proceeding to probate a copy of a testamentary instrument as a lost will. The petitioners have moved to withdraw their petition and have letters of administration issued instead.

Case Background

The decedent passed away in October of 2000. The propounded instrument was executed in March of 1995. In the instrument the decedent left her estate to her two sisters or the survivor. Her older sister was named as the executor and her younger sister was named as the successor. Her older sister passed away and as a result the entire estate passed to her younger sister in its entirety.

A New York Probate Lawyer said the sister petitioned for an appointment of a guardian of her property in 2005. The court finding that she had a history of poor judgment in regard to her real and personal property appointed the petitioners as the guardians of her property.

In May of 2007, the petitioners were authorized to petition to probate the will from 1995. At this time the original will could not be located and the petitioners petitioned to probate a copy of the 1995 will as a lost will. An affidavit was provided to support this action. In the affidavit the witness states that she went through all of the important papers of the decedent after her death. While the original will must have been with the decedent, the house had now been sold and the new owners had thrown away all of the decedent’s papers.

The instrument in question was prepared by an attorney who supervised the execution and was a subscribing witness. Brooklyn Probate Lawyers said he has filed an affirmation with the court. The second subscribing witness cannot be found. The petitioners are now moving to withdraw their probate petition and ask the court to issue letters of administration to them. They allege that they are unable to probate the instrument because they cannot find the second witness.

The distributees have executed agreements to waive their intestate rights to mirror the plan that was set forth in the last will and testament.

Case Discussion and Decision

Bronx Probate Lawyers said when there is apparently a valid testamentary instrument on file it is the obligation of the court to try and respect the testamentary wishes that have been expressed if at all possible.

In this particular case there are no exceptions to excuse probate. The only beneficiary of the will is alive and the petitioners are authorized by the Supreme Court to begin probate proceedings on her behalf. Probate in this case does not seem to present any difficulties.

All of the distributees in the case have agreed that the last wishes of the decedent should be adhered to. Under these particular circumstances the court cannot agree to abandon probate. However, the court cannot force the petitioners to continue with probate either.

The court is directing the petitioners to complete their papers to support the petition and to present an affidavit showing that they have conducted a diligent search for the second subscribing witness. If they fail to locate the witness the Public Administrator is directed to file a petition for using the said instrument in their place.

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