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THE INSTRUMENT SHOULD HAVE BEEN ADMITTED TO PROBATE AS A LOST WILL (SECOND DEPT).

The Second Department, reversing Surrogate’s Court, determined the will should have admitted an instrument to probate as a lost will. It was shown the will was never in decedent’s possession which negated the presumption the will had been revoked:

A lost or destroyed will may be admitted to probate if (1) it is shown that the will has not been revoked, (2) execution of the will is proved in the manner required for probate of an existing will, and (3) “[a]ll of the provisions of the will are clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of the will proved to be true and complete” … . “When a will, although once possessed by a testator, cannot be found after the death of the testator, a strong presumption arises that the testator revoked the will by destruction” … . “The presumption may be overcome, and the lost will admitted to probate, if the proponent establishes that the will was not revoked by the testator during his or her lifetime” … .

Here, in support of the petition, the petitioners submitted, among other things, the affirmation of the attorney-draftsperson, the affidavit of an attesting witness, and the unsigned copy of the decedent’s lost will. The petitioners’ submissions established that the will was never in the decedent’s possession, that the will had not been revoked, and that the will was duly executed … . Matter of McKenna, 2023 NY Slip Op 00664, Second Dept 2-8-23

Practice Point: Here there was unsigned, undated copy of the will, proof the will was never in the decedent’s possession and that it had been duly executed. The instrument should have been admitted to probate as a lost will.

 

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