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WILL OF JAMES O'BRIEN, Decedent

WILL OF JAMES O'BRIEN, Decedent. (13/1174) — This is an uncontested proceeding to probate a copy of a lost will dated August 26, 2004. Decedent James O'Brien died on April 19, 2012, survived by his wife and two sons from a prior marriage. In the propounded will decedent leaves 75 percent of his estate to his wife and 25 percent to one of his sons. He nominates the other son as executor, expressly disinheriting that son because he was "financially secure."

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WILL OF JAMES O’BRIEN, Decedent. (13/1174) — This is an uncontested proceeding to probate a copy of a lost will dated August 26, 2004. Decedent James O’Brien died on April 19, 2012, survived by his wife and two sons from a prior marriage. In the propounded will decedent leaves 75 percent of his estate to his wife and 25 percent to one of his sons. He nominates the other son as executor, expressly disinheriting that son because he was “financially secure.”

It is conceded that the attorneydrafter gave the original will to decedent, who was the last person to possess it. Despite a diligent search, the original will has not been found. In these circumstances, a presumption arises that decedent revoked the will (see SPCA §1407[1]). Proponent may overcome the presumption, but only by “adequate proof” (Matter of Staiger, 243 NY 468, 472 [1926]). An offer of “mere speculation and suspicion” is not a basis for admitting a lost or destroyed will to probate (Matter of Philbrook, 185 AD2d 550, 552 [3d Dept 1992]; see also Matter of Gottlieb, 75 AD3d 99 [1st Dept 2010]).

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