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Court Decides Lengthy Will Contest Proceeding


In 1970, a doctor executed a will prepared by his attorney. The original will was retained in the attorney’s files and the doctor was given a conformed copy. The attorney died in 1972 and the doctor died in 1979, at which time the original will could not be located in the attorney’s files. The proceeding to admit the lost will for validation was commenced by the will proponent. The law provides that a lost or destroyed will may be admitted for validation only if it is established that the will has not been revoked; or execution of the will is proved in the manner required for the validation of an existing will, and all of the provisions of the will are clearly and distinctly proved by each of at least 2 credible witnesses or by 1 witness and a copy or draft of the will proved to be true and complete.

At trial, the proponent submitted evidence that the doctor did not revoke the original will since it was lost while in the possession of the attorney-draftsman. The appellant submitted evidence tending to show that the doctor had revoked the will by tearing it into pieces. Two of the witnesses who attested to the original will testified with respect to due execution but neither could remember any of the substantive provisions of the will.

A New York Probate Lawyer said that regarding the third requirement of the law, the legal secretary who typed the original will testified that she recognized her initials on the first page of the conformed copy of the will that was received into evidence. She also recognized that the type was the same used by her IBM typewriter. She recalled that the original will contained many provisions and that many bequests were made to foreigners. She further testified, however, that she never read the will after she typed it and could not remember any of the provisions of the original will. No other witness testified as to the contents of the original will.

The question thus becomes whether the testimony of the secretary combined with the submission of the conformed copy of the will clearly and distinctly proves all of the provisions of the original will within the meaning of the law in order to permit the admission of the lost will for validation. The court held that the three prerequisites for admission of a lost will for validation had been fully satisfied and admitted the lost will for validation. Specifically, the court found that the presumption of revocation of the will by the doctor had been overcome by the testimony that the will was lost while in the possession of the attorney-draftsman and that the contestants did not meet their burden of proving revocation by physical act or superseding will or appendices. Satisfied that the original will had been duly executed, the court interpreted as merely demanding proof of the authenticity of the submitted copy as a true and complete duplication of the original will and held that the secretary’s testimony sufficiently identified the copy and proved that its contents were identical to the original.

NYC Probate Lawyers said that the court permits the validation of a lost will which has been duly executed and has not been revoked only if of the provisions of the will are clearly and distinctly proved by witness and a copy or draft proved to be true and complete. The plain wording of the statute leads to the conclusion that the witness must testify as to the substantive provisions of the original will and not merely to the effect that the submitted copy is believed to be authentic.

The contents of the will must be proved after existence of the will and its destruction has been established. The statute provides that all of the provisions of the will must be clearly and distinctly proved by each of at least two credible witnesses or by one witness and a copy or draft of the will proved to be true and correct. In this respect the present statute does not differ from the prior one. Knowledge of the execution of the will is not knowledge of its contents. And while the witnesses need not give the exact language of the will, but merely the substance, each of the witnesses must testify to all the principal parts of the will. A copy of the will takes the place of the second witness, but the witness’ supporting letter does not.

The dissent nevertheless argues that the legislative history supports the conclusion of the Surrogate’s Court and the majority. One of the research counsel reported to the commission concerning his proposal to revise the evidentiary requirements to provide due execution of the lost or destroyed will be established; proof of the contents of the will by each of two witnesses; and a copy of the will should suffice to prove contents.

Although this fact alone disposes of the contention urged by the dissent, it was nevertheless found that the legislative history referred to is, at best, ambiguous and therefore unsupportive of the construction urged. The passage relied on can be interpreted to support the construction of the statute for it states the general rule that the contents must be established by the testimony of two witnesses, but proposes an exception that a copy should suffice to prove the contents, meaning that a copy should be a permissible substitute for the testimony of one of the witnesses. Section of the Surrogate’s Court Act, expressly required the testimony of at least two credible witnesses, a correct copy or draft being equivalent to one witness. It is doubtful that the author of the passage intended to propose a radical alteration of existing law by suggesting that a copy of the will should serve as a sufficient substitute for the testimony of two witnesses instead of one.

But even if the legislative history were construed to support the position that a copy of the will alone should constitute sufficient proof of contents, it is not supported by the mandate and the express language of the statute. The court should not ignore the words of a statute, clear on its face, to reach a different result through judicial interpretation.

The legislative policy embodied is designed to prevent the validation of fraudulent wills. The policy will be subverted if a will, such as the one at issue, may be established and admitted for validation merely on the basis of testimony regarding the event surrounding the execution of the will rather than as to the contents of the will itself. A strict construction of the statute in question is therefore essential in order to insure that this legislative policy is properly effectuated.

It is evident in light of the foregoing that the secretary’s testimony did not clearly and distinctly prove all the provisions of the will as required. Although the attesting witnesses remembered various events surrounding the execution of the will, neither of them had read it and were also unable to testify as to the substance of its contents. Thus, assuming that the copy of the will submitted into evidence was actually a conformed copy of the original will, the respondent proponent did not otherwise carry his burden by clearly and distinctly proving all the provisions of the will by at least one credible witness.

There is, however, additional evidence, not referred to by the majority, which establishes with indisputable clarity the authenticity of the photocopy of the will. NY Probate Lawyers said that the testimony of two of the subscribing witnesses establishes that the doctor and his wife both executed their wills at the same time and place. Present were the doctor and his wife, the two subscribing witnesses and the attorney. The will of the doctor’s wife was executed first, the two witnesses then signed as witnesses to the will, as did the attorney. A copy was verified by the attorney and was given to the doctor’s wife and the original retained by the attorney. The same procedure was followed for the execution of the doctor’s will, and the subscribing witness, testified that the copy given to the doctor was a photocopy in a blue back, which showed on its face page that it was the last will and testament. It consisted of a few pages, though he could not say how many, and the printing on the last page of which (conforming the copy) he had watched the attorney insert, and that the copy of the will produced in court was the copy the attorney gave to the doctor. Though he had not read or otherwise become acquainted with all the provisions of the will, the subscribing witness’ testimony together with that of the secretary and the Surrogate’s finding that the staples had not been removed from the copy presented in court was sufficient to authenticate the copy as a copy of the will of the doctor had executed. The other subscribing witness who testified did not say in so many words, that the copy in court was the copy given to the doctor, but he confirmed that he had looked at the first and last pages and his testimony was otherwise essentially the same as his fellow subscribing witness.

The will of the wife was admitted in evidence without objection. The will appears to the naked eye to be in the same type face as the doctor’s will and like the doctor’s will bears in the upper left hand corner of the first page a legend. It is, moreover, identical in its provisions with the doctor’s will, except as it substituted his name for hers in its dispositive provisions and made resulting conforming changes, and except that in disposing of the estate should the other spouse not survive (or die in a common disaster) one of the 48 specific bequests was in the sum of $2,000 in the doctor’s will but in the amount of only $1,000 in his wife’s will. The date of execution borne by the two wills is the same. The names of the subscribing witnesses appear in the same order and are the same names and addresses that appear on the conformed copy of the doctor’s will, but appear to be in manuscript writing whereas on the doctor’s will they are printed. Moreover as the Surrogate noted on the record when the wife’s will was introduced, both wills consisted of nine typewritten pages. The doctor’s wife died on February 1, 1971. Her will was not admitted for validation because her husband, as the sole beneficiary under it, noted that he was tenant by the entirety of the property that would have passed under it, but a copy of the will was filed as part of the petition to fix tax on her property. The copy of her will admitted in this probate proceeding came from the Surrogate’s Court file.

Accordingly, the order of the Appellate Division should be reversed, with costs to all parties appearing separately and filing separate briefs payable out of the properties, and the petition for validation of the lost will of the doctor be dismissed.

Safekeeping our important documents should be one of our major concerns. If you intend to execute a will, have someone you mostly trust be aware where you intend to keep it so your family members can focus on executing the will and benefit from your estate rather than finding its copy. If you are caught in this situation, you may call the New York Estate Lawyers at Stephen Bilkis and Associates.

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