ESTATE OF ESTER FRIEDMAN, Deceased. (12/3738/C) — This is an uncontested proceeding to probate a copy of a written instrument dated July 8, 1992 (the propounded instrument), purporting to be the lost will of Ester Friedman (the decedent) pursuant to SCPA 1407. The decedent died on November 6, 2010, survived by her spouse and two adult children, namely Menachen Friedman and Chana Friedman (the petitioner). In the propounded instrument, the decedent bequeaths her residuary estate to the children and to her grandchildren, David Azouloy and Joelie Azouloy, in trust. The petitioner is the nominated executor and trustee. Jurisdiction is complete and has been obtained over all interested parties. No objections were filed.
SCPA §1407 provides that a lost or destroyed will may be admitted to probate upon establishing (1) that the will has not been revoked, (2) proper execution, and (3) the provisions of the will. SCPA 1407; Matter of Mitchell, 38 Misc 3d 1226(A) (Sur Ct, Nassau County 2013). In support of her petition to admit the propounded instrument to probate, petitioner submitted her own affidavit and an affidavit from Maria Olavarria, one of the attesting witnesses. The record reflects that the petitioner was the decedent’s primary care giver, that the decedent informed her that she had executed a will and never indicated that she revoked her will, and that a few months after the decedent’s death, the petitioner found the decedent’s original will under the decedent’s bed, among her other papers and belongings. The petitioner submits that she viewed the will and left it with the other papers she found. Three years later, in preparation for the commencement of this proceeding, only a copy was found despite diligent efforts to locate the original instrument. The record further reflects that the petitioner has found no subsequent will or copies thereof, and that the copy found is an exact replica of the original will. The record also reflects that the will was drafted by an attorney and signed by two attesting witnesses, who executed self-proving affidavits.
