This is an uncontested SCPA 1407 proceeding by a son of the decedent to probate, as a lost will, a photocopy of an instrument dated August 12, 2015. The decedent died on June 1, 2021 at the age of 63. In addition to the petitioner, his distributees are a spouse and a daughter, both of whom consent to the application. The propounded instrument is signed by the decedent, witnessed by two witnesses and annexes a self-proving affidavit. The propounded instrument leaves the entirety of decedent’s estate to his surviving spouse, and if she should not survive him, to his issue per stirpes. The sole assets of the estate are two bank accounts with a collective approximate value of $1,000,000. In support of the application, the pro-se petitioner annexes an affirmation from the attorney draftsman of the purported instrument, who states that the original will was given to the decedent when he left the draftsman’s office the day it was executed. The pro-se petitioner also submits his own affidavit stating his belief that he knew his father’s wishes and that he does not believe his father to ever have intended to revoke his will. An affidavit by the decedent’s surviving spouse reiterated same. Here, there is no evidence that any person other than the decedent was in custody of the original will. As the original cannot be found, a presumption arises that the decedent destroyed the will with an intention to revoke it (see SCPA 1407 [1]; Matter of Fox, 9 NY2d 400, 411 [1961]). The presumption can be rebutted by clear and convincing evidence (see Matter of Millens’ Will, 30 NYS2d 274 [Sur Ct, Ulster County 1941], affd 264 App Div 936 [3d Dept 1942], affd 291 NY 613 [1943]), but where the presumption is not overcome, the lost will may not be admitted to probate (see Matter of Passuello, 169 AD2d 1007, 1008 [3d Dept 1991]). A copy of a lost or destroyed will may be admitted to probate only where: (1) it is established that the will has not been revoked; (2) execution of the instrument is proved in the manner required for the probate of an existing will; and, (3) all of the provisions of the will are clearly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 (see SCPA 1407; Matter of Morton, NYLJ, Sept. 26, 2017 at 26, col 1 [Sur Ct, Kings County [2017]). A strong presumption of revocation applies where an original copy of an executed instrument cannot be located after a testator’s death if that original was in the testator’s possession (see Matter of Fox, 9 NY2d 400, 407 [1961], quoting Collyer v. Collyer, 110 NY 481, 486 [1888]; Matter of Gottlieb, 75 AD3d 99, 105 [1st Dept 2010], lv denied 16 NY3d 706 [2011]; see also Matter of Marotta, 137 AD3d 787 [2d Dept 2016]; Matter of Demetriou, 48 AD3d 463, 464 [2d Dept 2008]). Absent conclusive proof establishing, in the first instance, that the original instrument was never in the decedent’s possession after its execution, there is a strong presumption that it was in the decedent’s possession and revoked by his act (see Matter of Fox, 9 NY2d at 400; Matter of Gottlieb, 75 AD3d at 105). Under the circumstances presented in this proceeding, in which only the pro-se’s affidavit is submitted claiming to know the decedent’s lack of intent to revoke his will without any substantiation or facts provided in support of the his belief, the proof amounts to mere speculation which is insufficient to meet the standard of clear and convincing evidence (see Passuello, 169 AD2d at 1008; Matter of Rossner, NYLJ, Dec. 10, 2015, at 22, col 4 [Sur Ct, NY County 2015]). The proponent has failed to rebut that strong presumption with the evidence submitted on this application. Accordingly, the petition seeking to admit a copy of an instrument dated August 12. 2015, is denied. This decision constitutes the order of the court.
