DECISION This is an uncontested proceeding to probate a copy of a testamentary instrument dated December 8, 2022, as the lost will of William J. Mulloy (decedent). Decedent died on January 6, 2024, at the age of 95 survived only by his spouse, Harold Forbes. Forbes, who is the nominated executor in decedent’s will, is Petitioner herein. The 2022 instrument bequeaths decedent’s residuary estate to Forbes and designates Doctors Without Borders as a contingent beneficiary. As provided by SCPA 1407, “[a] lost or destroyed will may be admitted to probate only if [:]1. [i]t is established that the will has not been revoked, and 2. [e]xecution of the will is proved in the manner required for the probate of an existing will, and 3. [a]ll 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.” When an original will, last having been in the possession of the decedent, cannot be found after his or her death, a presumption arises that the decedent destroyed the will with an intention to revoke it (Matter of Fox, 9 NY2d 400, 408 [1961]; Collyer v. Collyer, 110 NY 481[1888]). No presumption of revocation arises, however, if, for example, the attorney-drafter had custody of the original will (Matter of Rothenberg, NYLJ, Oct. 2, 2020, at 21, col 3 [Sur Ct, NY County 2020]). Similarly, the presumption of revocation does not arise if the will was available at the decedent’s death but is lost thereafter (Matter of Gubbins, NYLJ, March 5, 1998, at 31, col. 2 [Sur Ct, Suffolk County 1998] [granting probate to a copy of the original will after sufficiently proving that the will was present after the decedent's death but inadvertently destroyed thereafter]). Here, Ellen M. Dougherty, Esq., the attorney-drafter and nominated successor executor (Drafter) appointed in decedent’s will confirmed in a sworn statement filed with the court that 1) she supervised the execution of the decedent’s will, 2) the will was signed by decedent in front of two witnesses, and 3) the two witnesses signed the will in the presence of decedent. After the execution of the will, Dougherty gave decedent the original will for safekeeping. Petitioner, confirmed in a sworn statement filed with the court that he and decedent lived together and kept the will in their important papers. However, Petitioner erroneously discarded the original will after decedent passed away because he did not know that it was needed for a probate proceeding. The uncontroverted proof establishes that decedent’s surviving spouse was in possession of the original will following decedent’s death. Consequently, the presumption of revocation does not arise. (SCPA 1407[1]). The court, therefore, concludes that decedent did not revoke the original will before his death. The court is further satisfied that the will was validly executed in compliance with EPTL 3-2.1, and that, at the time of execution, decedent had the mental capacity to make a will and was not under any restraint (SCPA 1407[2]; 1408; Matter of Spinello, 291 AD2d 406 [2d Dept 2002]). Finally, the provisions of the lost will have been proven by a photocopy of the executed will, which was established as a true and complete copy (SCPA 1407[3]). Accordingly, the propounded instrument shall be admitted to probate. Probate decree signed. Dated: October 3, 2024
