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Court Rules on Case Where Multiple Will Documents Involved


A New York Probate Lawyer said the subject of this Probate proceeding is the question of revocation of a six-page handwritten document, an alleged carbon copy of which has been offered for probate as the last will and testament of the decedent.

According to a Nassau County Will Contest lawyer, the decedent is an attorney, who died in May 1977. Thereafter, letters of administration were issued to the Public Administrator, County of Nassau, who received the keys to the decedent’s residence from a Nassau County police detective and made a thorough search of the residence.

A New York Will Lawyer said among the decedent’s personal papers the public administrator found a sealed envelope bearing the words “Copy of Deed to Lutheran Cemetery,” “Copy of Last Will and Testament ” and the signature of the decedent. On the back of the envelope, written across the flap was the signature of the decedent.
The envelope was found to contain a deed to a cemetery plot at Lutheran Cemetery and an apparent carbon copy of a handwritten document purporting to be the last will and testament of the decedent. The objectants concede that the document is written in the decedent’s handwriting. No evidence was offered to prove that the document was a carbon copy although the proponent herself alleges that it is a carbon and not a ribbon copy.

Long Island Probate Lawyers said the instrument provides for the disposition of real property, bequeaths $300.00 to each of eight cousins of the decedent and the residuary estate to other cousins who served and appointed as executors of the estate. Three of the cousins named in the instrument and five other individuals whose status is contested by the proponent are the objectants in this proceeding.

Queens Probate Attorneys said at the time of her death, the decedent no longer rented a safe deposit box. An inspection of her safe deposit box at the National Bank of North America failed to disclose any instrument purporting to be the last will and testament of the decedent or a copy thereof.

Where a will is last known to be in the possession of the decedent and is not found at his death, the presumption arises that the decedent himself destroyed the will animorevocandi. This presumption of intentional revocation may be rebutted by circumstantial evidence.

In the present case, the witnesses, whose names are printed on the instrument offered for probate, testified regarding the execution and attestation of the decedent’s will in 1960, the signing of a copy of the will by the decedent, in their presence, and the retention of both the original and the copy by the decedent.

Where the proponent of a will cannot produce the executed ribbon copy but produces a fully executed carbon copy which was in the decedent’s possession at the time of his death, the presumption of revocation is overcome.

In the present case, there is no evidence that the witnesses, whose names are printed on the carbon copy signed the copy. EPTL 3-2.1 sets forth the requirements for the execution and attestation of wills. A will must be signed at the end by at least two witnesses. The privilege of informal testation is granted to mariners at sea and military personnel only. Since there is no proof that the decedent satisfied these requirements, the conclusion must be that the instrument was not executed with the necessary formalities and is at best a conformed copy of the original. The presumption of revocation is therefore operative.

Declarations of a deceased concerning revocation or non-revocation are only admissable as part of the res gestae, the reason being that it is likely that a decedent may have attempted, during his lifetime, to “silence importunity and elude questions” concerning the testamentary disposition of his property and therefore statements made to third parties concerning his will have little credibility. This reasoning applies with equal force to statements in writing. Written declarations of a decedent which are not received as part of the res gestae are inadmissable on the question of revocation. In any event the letter if admitted into evidence, at best might prove non-revocation as of 1968, more than nine years prior to the decedent’s death.

The proponent’s argument that the 1968 letter constituted a republication of the 1960 instrument is wholly without merit. EPTL 3-4.6 requires that there be a re-execution and re-attestation for republication of a prior will.

A careful review of the evidence in this case discloses that the proponent has failed to offer sufficient proof to rebut the presumption of revocation and accordingly, the petition for probate of the instrument, and filed with this court is denied.
If there is no showing that the decedent indeed revokes his will, there must be at least an act indicting that he has the intention to revoke a will and substitute another will. Here in Stephen Bilkis and Associates, our Nassau County Will Contest attorneys will help you contest a purported last will and testament of a decedent. In case you need help in proper administration of your estate, you can consult our Nassau County Estate lawyers now for a reliable advice.

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