Surrogate Edward McCarty III
In a contested probate proceeding, petitioner, a putative beneficiary, sought summary judgment on her motion to admit a copy of a one page undated instrument, alleged to be decedent’s last will and testament, to probate. Under Surrogate’s Court Procedure Act §1407 a lost or destroyed will or codicil may be admitted to probate upon a showing it was not revoked, was properly executed and of the provisions of the missing will. Objectant, decedent’s son, submitted an affidavit challenging that the instrument was properly executed, and decedent’s testamentary capacity. The court was satisfied the original instrument’s provisions were established and confirmed by the two attesting witnesses. It also noted the original will was removed from decedent’s home lock box and was then lost, mislaid or disappeared under "suspicious circumstances." Yet, the court was satisfied the instrument was not revoked. Further, petitioner made a prima facie showing, and objectant failed to raise a material question regarding the due execution of the instrument. Also, as the only evidence presented in opposition would be excluded at trial, the court ruled objectant failed to raise a triable issue of fact, granting petitioner’s motion.