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Estate of DiDamo

Probate of Photocopy of Lost Will Granted as Presumption of Revocation Never Arose

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*1This is an uncontested SCPA 1407 proceeding to probate, as a lost will, a photocopy of a will dated June 4, 2011. The propounded instrument was not attorney drafted or supervised, it is witnessed by three witnesses, contains an attestation clause, and each of the three witnesses separately executed a witness affidavit after the decedent’s death. The decedent’s niece and nephew, his only distributees who receive nothing under the instrument, filed waivers and consents to the application. The decedent died on June 12, 2017 at the age of 85. He was predeceased by his spouse and only child. The propounded instrument leaves the entire residuary estate to two charities. In support of the application, counsel for the petitioner filed an affirmation alleging, inter alia, that: the proponent and the three witnesses were all long time friends of the decedent who stated to them many times that he wanted his estate to go to the two charities which perform work relating to his son who died at age 17 of muscular dystrophy; after the decedent’s death, one of the witnesses took the original instrument for photocopying and was unable to find the original instrument; and, all distributees consent to the application.

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