Surrogate HayesWILL OF JOAN GORBA, Deceased (18-864/A) — In this uncontested proceeding pursuant to SCPA §1407, petitioner seeks to admit a lost testamentary instrument to probate. The petitioner has provided a document entitled the “Last Will and Testament” of Joan Gorba. The propounded instrument is an alleged conformed copy of the Will of the deceased. Her signature does not appear on the document. Instead, her purported signature is marked with an “s/”. The witnesses’ signatures appear as s/Jaqueline A. Olivet and s/Adrienne W. Sheeley.SCPA §1407 permits a copy or draft of a Will to be admitted to probate if it can be shown that (1) the Will has not been revoked, (2) the Will was duly executed, and (3) all of the provisions of the Will can be clearly proven by at least two credible witnesses or by a copy or draft of the Will proved to be true and complete (see SCPA §1470; In re Estate of Castiglione, 40 AD3d 1227 [3rd Dept 2007]).The proponent of the propounded instrument has the burden of proof in establishing that the Will had not been revoked prior to the decedent’s death (see SCPA §1407[1]; Matter of Estate of Gray, 143 AD2d 751 [2nd Dept 1988]). This obligation imposed upon a proponent of a lost or destroyed Will stems from the principle which arose at common law that when a Will previously executed cannot be found after the death of the testator, there is a strong presumption that it was revoked by destruction by the testator (see Matter of Estate of Gray, 143 AD2d 751 [2nd Dept 1988]). Thus, if a Will, shown once to have existed and to have been in the testator’s possession, cannot be found after the testator’s death, the legal presumption is that the testator destroyed the Will with the intention to revoke it (see In re Evans, 264 AD2d 482 [2nd Dept 1999]).In this regard, the petitioner offers the affirmation of Ira Pergament, Esq. Mr. Pergament states that it was his practice to retain the original Last Will and Testament in the possession of his law office. About 1995 or 1996, he changed law offices and transferred all his files, including original Wills, to his new office. It was during this transition that he believes that the original Last Will and Testament of the decedent was lost.With respect to the first requirement of SCPA §1407, the affirmation of Ira Pergament, Esq. is sufficient to establish that the original Will was never in the decedent’s possession: instead, the original was kept at the attorney-draftsman’s office and lost during a move. As the original Will was neither lost in decedent’s possession nor otherwise revoked, the presumption of revocation has not arisen (see In re Estate of Cafferky, 38 Misc3d 1219[A] [Sur Ct, Bronx County 2013]).Accordingly, based upon the proof submitted, the Court is satisfied that the instrument dated August 23, 1985 was not revoked by the decedent during her lifetime.SCPA §1407(2) requires that the proponent of a lost or destroyed Will to establish that the execution of the Will be proven in the same manner as required for the probate of an existing Will.The fact that a Will bears an attestation clause reciting due execution raises a strong inference that the execution was according to the recitals (see Matter of Abel, 136 AD 788 [2nd Dept 1910]). The presence of such attestation clause does not give rise to a presumption of law, but is in itself presumptive evidence of such facts as may be deduced or inferred from it naturally (id.).There is a presumption of regularity that the Will was properly executed in all respects when an attorney-draftsperson supervises a Will execution ceremony (see Matter of Farrell, 84 AD3d 1374 [2nd Dept 2011]; Matter of Moskoff, 41 AD3d 481 [2nd Dept 2007]; Matter of Tuccio, 38 AD3d 791 [2nd Dept 2007]; Matter of James, 17 AD3d 366 [2nd Dept 2005]; Matter of Weltz, 16 AD3d 428 [2nd Dept 2005]).The proponent of the propounded instrument submits the affidavits of Adrienne Sheely and Jaqueline Olivet, the attesting witnesses to the testamentary instrument of Joan Gorba.Ms. Sheely states that she was present on August 23, 1985 and witnessed the decedent sign her Last Will and Testament. Pursuant to her recollection, at the time of the signing, the decedent was of sound and disposing mind, memory and understanding. She witnessed the decedent read the document and proclaim it to be her Last Will and Testament. The decedent only signed one original copy of the Last Will and Testament dated August 23, 1985. Ms. Sheely maintains that the decedent was aware of the bounty of her estate, making a specific bequest to her son and dividing the residuary among her daughters.Ms. Olivet states that she was present on August 23, 1985 and witnessed Joan Gorba sign her Last Will and Testament. She maintains that the decedent read the document, declared to her attorney Ira Pergament, Esq. that she had done so and executed the document. Ms. Olivet maintains that Ms. Gorba exhibited no signs of confusion or incapacity. Furthermore, to the best of Ms. Olivet’s knowledge, she recalls only one (1) signed original of the August 23, 1985 instrument.The affirmation of Ira Pergament indicates that he was retained by the decedent and prepared the propounded instrument which was executed on August 23, 1985 at his law office of Moran, Spigel, Pergament and Brown.The sworn statements of the petitioner’s witnesses, plus the attestation clause in the conformed copy of the Will, forms a sufficient basis to establish due execution (see Matter of Will of Kalenak, 182 AD2d 1124 [4th Dept 1992]).Lastly, SCPA §1407 permits the probate of a lost or destroyed Will which has been not been revoked and duly executed only if all of the provisions in the Will are clearly and distinctly proven by at least two (2) credible witnesses or by a copy or draft of the will proved to be true and complete. The Court of Appeals in the Matter of Kleefeld’s Estate, 55 NY2d 253 [1982], determined that the plain wording of SCPA §1407 leads to the conclusion that a witness must testify as to the substantive provisions of the original Will and not merely to the effect that the submitted copy is authentic. Thus, even assuming that a copy of a Will, submitted into evidence, was actually a conformed copy of the original Will, the proponent must also clearly and distinctly prove all of the provisions of the Will by at least one credible witness (see Matter of Kleefeld’s Estate, 55 NY2d 253 [1982]).The submissions by the proponent of the propounded instrument fail in the first instance to indicate that the document she is advancing for probate is an authentic copy or draft of the Last Will and Testament of Joan Gorba. Additionally, there is no evidentiary submission by the proponent which clearly and distinctly proves all of the provisions of the Will by any witness. The submissions of Mr. Pergament, Ms. Olivet and Ms. Sheely are completely silent as to their knowledge of the provisions contained within the testamentary instrument submitted for probate. At least one credible witness must submit an affidavit clearly and distinctly proving all provisions of the Will before the copy can be admitted to probate.Based upon the foregoing, it is hereby,ORDERED, that the petition seeking admission of the propounded instrument dated August 23, 1985, pursuant to SCPA §1407, is denied.The foregoing constitutes the decision and order of this Court.
