Surrogate Peter Kelly

 

Read Full-Text Decision

Decedent’s children, Adeline, Carmela and Frank sought to probate a copy of an executed testamentary instrument providing for equal distribution of the estate to the children, subject to a life estate in Howard Beach, New York premises in Carmela’ favor. Frank previously aligned with his sisters in a verified petition, but hired separate counsel, and did not support the provisions of Carmela’s life estate. A hearing was held on whether the subject instrument may be admitted to probate as a copy of a lost will. Frank’s counsel objected to admission of evidence of the entire court file including Frank’s verified petition seeking admission of the copy of the instrument. The court found Frank’s petition and affidavit constituted formal and informal admissions of facts admitted in a party’s pleadings and were conclusive of facts admitted in the action. Witness testimony confirmed the original will was lost when the first floor of decedent’s home was ravaged and destroyed during Superstorm Sandy. It also found petitioners clearly and convincingly proved the original was not revoked by or at testator’s direction, but destroyed by a force of nature. The court ruled the copy offered was a true and complete copy of decedent’s original, granting the petition to admit it to probate.

Surrogate Peter Kelly

 

Read Full-Text Decision

Decedent’s children, Adeline, Carmela and Frank sought to probate a copy of an executed testamentary instrument providing for equal distribution of the estate to the children, subject to a life estate in Howard Beach, New York premises in Carmela’ favor. Frank previously aligned with his sisters in a verified petition, but hired separate counsel, and did not support the provisions of Carmela’s life estate. A hearing was held on whether the subject instrument may be admitted to probate as a copy of a lost will. Frank’s counsel objected to admission of evidence of the entire court file including Frank’s verified petition seeking admission of the copy of the instrument. The court found Frank’s petition and affidavit constituted formal and informal admissions of facts admitted in a party’s pleadings and were conclusive of facts admitted in the action. Witness testimony confirmed the original will was lost when the first floor of decedent’s home was ravaged and destroyed during Superstorm Sandy. It also found petitioners clearly and convincingly proved the original was not revoked by or at testator’s direction, but destroyed by a force of nature. The court ruled the copy offered was a true and complete copy of decedent’s original, granting the petition to admit it to probate.