Questions Concerning the Presumption that a Will Not Found After a Thorough Search Had Been Revoked (by Destruction) Should Have Been Resolved Before the Will Was Admitted to Probate—Matter Remitted to Surrogate’s Court

The Court of Appeals, in a full-fledged opinion by Judge Lippman, with a cautionary concurrence (describing the majority’s factual discussion as dicta, not binding on remittal), determined that there was an open question whether a 1996 will had been revoked. No will was found upon decedent’s death in 2010 and letters of administration were issued to decedent’s parents. Petitioner sought to revoke the letters and admit to probate a 1996 will which was drawn up when decedent was married to petitioner’s son. Petitioner had been named executor in the 1996 will. The 1996 will left all of decedent’s property to her then husband (petitioner’s son). Decedent and petitioner’s son divorced in 2007. Based upon the testimony of decedent’s ex-husband (petitioner’s son), the majority concluded it was possible there were four “duplicate original” 1996 wills, one of which had been in the possession of the decedent at her Clayton, New York, residence. Because that will was not found after a thorough search, a presumption arose that the 1996 will had been destroyed by the decedent and thereby revoked. The open questions concerning whether decedent was in possession of a “duplicate original” 1996 will (as opposed to merely a copy), and whether that will was revoked by destruction, should have been resolved before admitting the 1996 will to probate.  The matter was remitted to Surrogate’s Court to settle the open questions:

A will may, of course, be revoked not only by means of a writing executed in the manner of a will, but by the testator’s act of destroying it with revocatory intent (EPTL 3-4.1 [a] [2] [A] [i]), which act achieves the revocatory purpose even if there remain will duplicates outstanding (Crossman v Crossman, 95 NY 145, 152 [1884]). That a testator has in fact revoked a will by destruction is strongly presumed where the will, although once possessed by the testator, cannot be found posthumously despite a thorough search … . The presumption, once raised, “stands in the place of positive proof” … and must be rebutted by the will’s proponent as a condition of probate

Here, the facts of record, adduced in critical part through the testimony of petitioner’s son, supported inferences that decedent executed her 1996 will in quadruplicate, with each document having been meant to possess the force of an original instrument; that one of the will duplicates was kept at the Clayton, New York home where decedent resided after her divorce; and that, after a thorough search, no will was found there. Plainly, these circumstances sufficed to raise the presumption that decedent revoked her 1996 will by destroying it. It is equally plain that that presumption was not rebutted. None of the other duplicate wills was produced or otherwise accounted for. And, although petitioner now urges that the unproduced duplicates were merely copies, the uncertain status of the will duplicates, although commented upon by the Surrogate, was never resolved. We are left then with a will admitted to probate upon a record sufficient only to disprove it.

It is precisely to avoid such an incongruous outcome that the governing rule of proceeding has long been that “[a]s soon as it is brought to the attention of the surrogate that there are duplicates of a will presented to him for probate, it is proper that he should require [the] duplicates to be presented, not for the purpose of admitting both as separate instruments to probate, but that he may be assured whether the will has been revoked, and whether each completely contains the will of the testator” (Crossman, 95 NY at 152…). Here, it is manifest that the Surrogate’s attention was drawn to the existence of will duplicates, but the consequently arising issues as to the will’s validity were not resolved as they should have been in accordance with Crossman’s instruction. Petitioner was required not merely to exclude the possibility, but to rebut the legal presumption of revocation, sufficiently raised by the ex-husband’s testimony as to the existence of will duplicates, one of which had been kept, but was not found after decedent’s passing, at her post-divorce residence.  Matter of Lewis, 2015 NY Slip Op 04674, CtApp 6-4-15