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QUESTION OF FACT RAISED WHETHER DECEDENT REVOKED A LOST WILL.

The Second Department determined summary judgment should not have been granted in favor of objectants to the probate of a will. The original will could not be found, but copies were in a folder decedent told his home aide about. There was, therefore, a question of fact raised about whether the will had been revoked:

 

When a will previously executed and in the testator's possession cannot be found after the death of the testator, a presumption arises that the will was revoked by the testator … . This legal presumption may be overcome, and the lost will admitted to probate, if the will's proponent establishes that the will was not revoked by the testator during his or her lifetime (see SCPA 1407[1]…). * * *

… [E]vidence that, shortly before his death, the decedent showed the blue binder to the home health aide and stated that it contained his will and that it was kept in a certain location, which the decedent was thereafter unable to access due to his declining health, and where several copies of the will were later found after his death, was sufficient to raise an issue of fact regarding the presumption of revocation of his will, thereby precluding an award of summary judgment to the objectants on the issue of revocation … . Matter of Marotta, 2016 NY Slip Op 01491, 2nd Dept 3-2-16

TRUSTS AND ESTATES (QUESTION OF FACT RAISED WHETHER LOST WILL WAS REVOKED)/WILLS (QUESTION OF FACT RAISED WHETHER LOST WILL WAS REVOKED)

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CPLR 3216 IS A FORGIVING STATUTE WHICH ALLOWS BUT DOES NOT REQUIRE DISMISSAL OF THE COMPLAINT FOR FAILURE TO COMPLY WITH A 90-DAY NOTICE; HERE PLAINTIFFS PRESENTED AN ADEQUATE EXCUSE AND DEMONSTRATED THE ACTION HAS MERIT; THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).
APPELLANT, WHICH HAD PURCHASED THE PROPERTY WHILE THE FORECLOSURE ACTION WAS PENDING, SHOULD HAVE BEEN ALLOWED TO INTERVENE, CRITIERIA EXPLAINED (SECOND DEPT).
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