DECISION This is an uncontested proceeding to probate a copy of a testamentary instrument dated August 17, 2004, as a lost will of Lillian Rothenberg (“decedent”). Decedent died on November 21, 2004, and was 78 years old at the time of her death. She was survived by a son and a daughter. Decedent’s son, Neil Rothenberg, is the sole residuary beneficiary under the propounded instrument and is the petitioner herein. In addition to seeking to probate a copy of the lost will of decedent, petitioner seeks his appointment as administrator, c.t.a., the nominated executor having renounced. In order to have a copy of a lost will admitted to probate, petitioner must satisfy the requirements of SCPA 1407 which provides: A lost or destroyed will may be admitted to probate only if[:] 1. It is established that the will has not been revoked, and 2. Execution of the will is proved in the manner required for the probate of an existing will, and 3. All 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. In order to meet the first requirement, petitioner must demonstrate, by facts and circumstances, that, inter alia, the original will was in existence at the time of testator’s death, and had not been revoked by her (Matter of Fox, 9 NY2d 400, 408 [1961]). When an original will cannot be found after the death of a decedent, a presumption arises that decedent destroyed the will with an intention to revoke it (see SCPA 1407[1]; Matter of Fox, supra). No presumption of revocation arises, however, if the attorney-drafter had custody of the original will (Matter of Conti, NYLJ, July 26, 2007, at 32, col 5 [Sur Ct, Bronx County 2007]). Here, the attorney-drafter, in a sworn statement filed with the court, confirms that he kept the original will after its execution, and that decedent never contacted him to revoke her will. The record shows that petitioner contacted the attorney-drafter several months after decedent’s death and that the attorney-drafter “turn[ed] over” the original document to petitioner. The attorney-drafter states that he is unaware of any other wills of decedent. Petitioner acknowledges that he received the original from the attorney-drafter in 2005 and admits that he cannot find it. Thus, there is no proof that decedent ever was in possession of the original August 17, 2004 instrument and in a position to revoke it through physical destruction (see Matter of Lewis, 25 NY3d 456, 462 [2015]). Concerning the requirement that the execution of the will be proved in the manner required for probate of an existing will (SCPA 1407[2]), the court is satisfied from petitioner’s proof that the propounded instrument was executed in compliance with EPTL 3-2.1. The execution of the testamentary instrument was supervised by an attorney, permitting the inference that the statutory requirements were met (Matter of Spinello, 291 AD2d 406 [2d Dept 2002]). The instrument also contains an attestation clause and a self-proving affidavit. The attestation clause raises a presumption of its validity (Matter of Cafferky, 38 Misc 3d 1219[A] [Sur Ct, Bronx County 2013]). The third prong of SCPA 1407 requires that all the provisions of the will be proved by either two credible witnesses or by “a copy or draft of the will proved to be true and complete.” To satisfy this requirement, there must be evidence that the photocopy is an exact replica of the entire original will, such as a sworn statement from the attorney-drafter (Matter of Castiglione, 40 AD3d 1227, 1229 [3d Dept 2017]). In this case, the attorney-drafter does not state in his sworn statement that the copy of the will is a true and accurate reproduction of the decedent’s will. Additionally, affidavits of attesting witnesses have not been submitted. Conclusion Based upon the proof submitted, and in view of the lack of opposition, the court is satisfied that the original will dated August 17, 2004 was not revoked by decedent (SCPA 1407[1]). The court is further satisfied that the instrument was validly executed, and at the time of execution the decedent was competent in all respects to make a will and not under restraint (EPTL 3-2.1; SCPA 1407[2], 1408). However, the provisions of the lost will have not been proved because the photocopy submitted has not been shown to be a true and complete copy of the will as executed (SCPA 1407[3]). Petitioner is granted leave to supplement the record by submission of sworn statements from an individual with personal knowledge indicating that: a) the copy of the will submitted was made by petitioner from the original; or b) the attorney-drafter recognizes the copy submitted to the court as an exact copy of the original. This decision constitutes the order of the court. Clerk to notify. Dated: September 25, 2020
