DECISION This is an uncontested proceeding to probate a copy of an instrument dated December 5, 2020, as the lost will of Joan Mansoury (“decedent”). Decedent died on May 19, 2022, at 97 years old. She was survived by one daughter, Dawn Mansoury, who is Petitioner herein and sole distributee of decedent. Petitioner is also the sole beneficiary and nominated Executor under the propounded instrument. The affidavits in support of probate indicate that the original will was briefly retained by the attorney drafter so that the affidavit of subscribing witnesses could be executed in the presence of a notary, and then was mailed to Petitioner at decedent’s request. Around the time she received it, Petitioner was moving residences multiple times and purports to have lost or misplaced the original will. She confirmed that despite diligent searches after decedent’s death, the original will cannot be found. In order to admit a copy of a lost will to probate, a 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provides: “A lost or destroyed will may be admitted to probate only if (1) It is established that the will has not been revoked, and (2) Execution of the will is proved in the manner required for the probate of an existing will, and (3) All of the provisions of the will are clearly and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.” It is well established that where a will cannot be found after the testator’s death, a strong presumption arises that it was destroyed by the testator with the intention of revoking it (Matter of Fox, 9 NY2d 400, 407 [1961] citing Collyer v. Collyer, 110 NY 481, 486 [1888]). However, the presumption of revocation does not arise where the will was not in the decedent’s possession prior to their death (In re Quaranto, NYLJ, Jul. 13, 2000, at 32, col 1 [Sur Ct, Nassau County 2000]; Schultz v. Schultz, 35 NY 653, 655 [1866]; Estate of Paul Edward Mortola, NYLJ, Dec. 24, 1990, at 29, col 2 [Sur Ct, Suffolk County 1990]). Here, the attorney-drafter, in a sworn statement filed with the court, confirms that after its execution, she mailed the original will not to decedent, but to Petitioner, along with a PDF copy sent via email. Petitioner acknowledges that she received the original will from the attorney-drafter in 2020 but did not discover that she had lost or misplaced it until after decedent’s passing in 2022. The proof submitted establishes that the original December 5, 2020, instrument was never in decedent’s possession. Accordingly, the presumption of revocation does not arise (see Estate of Ortiz, NYLJ, Jan. 29, 2007, at 4, col 4 [Sur Ct, Bronx County 2007]), and the court is further satisfied that the will was not revoked by decedent during her lifetime (see SCPA 1407[1]; Schultz v. Schultz, 35 NY at 655). Regarding the second 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 that the propounded instrument was validly executed, and at the time of execution, decedent had the mental capacity to make a will and was not under any restraint (EPTL 3-2.1; SCPA 1408[1], [2].) Petitioner’s proof indicates that the execution of the propounded instrument was supervised by an attorney, permitting the inference that the statutory requirements were met (In re Spinello, 291 AD2d 406, 407 [2d Dept 2002]). Moreover, the will contains an attestation clause and a self-proving affidavit, which raises a presumption of its validity (see Estate of Rothenberg, NYLJ, Sep. 29, 2020 at 18, col 2 [Sur. Ct. NY County 2020]). The court is satisfied that Petitioner has met the third requirement, that all the provisions of the will are proved by either two credible witnesses, or by a copy or draft of the will proved to be true and complete (SCPA 1407[3]). Here, the attorney-drafter, who also acted as witness to the execution, submits a photocopy of the executed will with her sworn statement that is true and complete, which appears identical to the copy submitted by Petitioner and accompanied by her sworn statement (see Estate of Rothenberg at 3). Additionally, petitioner submits an affidavit of attesting witness by the second witness affirming the same (SCPA 1406). The court is satisfied that the provisions of the lost will have been proven by a photocopy of the executed will established by proponent to be a true and complete copy (Matter of Castiglione, 40 AD3d 1227, 1229 [3d Dept 2007]; SCPA 1407[3]). Accordingly, the propounded instrument dated December 5, 2020, is admitted to probate. Decree signed. Dated: August 16, 2024
