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WILL THAT CANNOT BE FOUND IS PRESUMED REVOKED, HERE PETITIONER DID NOT REBUT THE PRESUMPTION OF REVOCATION, CRITERIA EXPLAINED (FOURTH DEPT).

The Fourth Department determined Surrogate’s Court properly determined the presumption the will had been revoked had not been rebutted. Petitioner had attempted to probate a photocopy of the will which could not be found upon the death of the testator:

“A lost or destroyed will may be admitted to probate only if . . . [i]t is established that the will has not been revoked” (SCPA 1407 [1]).

” When a will previously executed cannot be found after the death of the testator, there is a strong presumption that it was revoked by destruction by the testator’ ” … . That “strong presumption of revocation by the testator . . . stands in the place of positive proof when a will previously executed cannot be found after a testator’s death”… . Respondent was thus entitled to rely on the presumption to meet his burden on the motion … . In addition, petitioner’s own submissions established that decedent asked to retain the original will in her possession, and the attorney who drafted the will had the original delivered to decedent shortly after its execution … .

In opposition to the motion, petitioner failed to present evidence sufficient to raise a question of fact whether the presumption of revocation may be overcome … . The presumption is unaffected by evidence that decedent’s attorney retained a copy of the will at his office and that decedent never advised him that she intended to revoke the will … . Nor may the presumption be overcome with hearsay accounts of decedent’s statements concerning her testamentary intentions … . Finally, while the presumption of revocation may be overcome with circumstantial evidence … , “[p]etitioner[] cannot succeed on mere speculation and suspicion” … . Rather, petitioner must present “facts and circumstances which show that the will was fraudulently destroyed during the testator’s lifetime” … . Matter of Scollan, 2018 NY Slip Op 03287, Fourth Dept 5-4-18

​TRUSTS AND ESTATES (WILL THAT CANNOT BE FOUND IS PRESUMED REVOKED, HERE PETITIONER DID NOT REBUT THE PRESUMPTION OF REVOCATION, CRITERIA EXPLAINED (FOURTH DEPT))/WILLS (REVOKED, WILL THAT CANNOT BE FOUND IS PRESUMED REVOKED, HERE PETITIONER DID NOT REBUT THE PRESUMPTION OF REVOCATION, CRITERIA EXPLAINED (FOURTH DEPT))/REVOCATION, PRESUMPTION OF (WILLS, WILL THAT CANNOT BE FOUND IS PRESUMED REVOKED, HERE PETITIONER DID NOT REBUT THE PRESUMPTION OF REVOCATION, CRITERIA EXPLAINED (FOURTH DEPT))/LOST WILLS (WILL THAT CANNOT BE FOUND IS PRESUMED REVOKED, HERE PETITIONER DID NOT REBUT THE PRESUMPTION OF REVOCATION, CRITERIA EXPLAINED (FOURTH DEPT))

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