Surrogate Edward McCarty III
In this uncontested action to probate a copy of Chadda’s will, the court noted the original will could not be located. Surrogate’s Court Procedure Act §1407 permits admitting to probate a lost or destroyed will or codicil if the will was not revoked, was properly executed and its provisions were established. Petitioners, Chadda’s husband and son, were supported by their attorney’s affirmation explaining that the lawyer who drafted the will retained possession of the original, but no longer practiced law or resided at the former address. Petitioners’ counsel also noted that Chadda’s husband appeared to have made changes to the will after her death, hence, they were looking for the original drafter. The court noted the presumption of revocation never arises where the will was known to be in existence after death, but was then lost or accidentally destroyed. The court’s file contained affidavits of attesting witnesses and execution of the original was supervised by an attorney, thus, permitted the inference that statutory requirements were met. The court also found it was satisfied that the original instrument’s provisions were established by a true, complete photocopy of the original, ruling the copy would be admitted.
