ESTATE OF JOHN RIGLEY, ALSO KNOWN AS JOHN R. RIGLEY, Deceased

ESTATE OF JOHN RIGLEY, ALSO KNOWN AS JOHN R. RIGLEY, Deceased (15/2169) — This is an uncontested proceeding to probate, as a lost will, a photocopy of a will dated October 5, 2012 and for the issuance of letters of administration c.t.a. to the petitioner, the deceedent's spouse. The decedent died on October 25, 2014 at the age of 63. The instrument leaves the entire residuary estate to the spouse, and names his sister-in-law as executor, and two friends as successor executors. In addition to the spouse, the decedent's other distributee is a son, who consents to the application, as do the nominated fiduciaries. The instrument was attorney supervised, witnessed by three witnesses, and contains an attestation clause. The former estate attorney avers that after the decedent's death, the spouse gave him the decedent's will, attesting affidavits, living will and health care proxies, all originals, for the purposes of filing this proceeding and handling the estate work, but he lost the original documents when his office moved to a new location. As the original will was not lost while in the decedent's possession, the presumption of revocation never arose (Matter of Conti, NYLJ, July 26, 2007, at 32, col 5; Matter of Ortiz, NYLJ, Jan. 29, 2007, at 33, col 4; Matter of Gethins, 97 Misc 561 [Sur Ct, Bronx County 1916]). Furthermore, based upon the proof submitted, including the consents of the other distributee adversely affected by the propounded instrument, the court is satisfied that: (1) the will dated October 5, 2012 was not revoked by the decedent during his lifetime (SCPA 1407 [1]); (2) the original of the instrument offered for probate was validly executed and, at the time of its execution, the testator was competent to make a will and not under restraint (EPTL 3-2.1; SCPA 1407 [2], 1408); and, (3) the provisions of the will have been proven by the photocopy which was established as a true and complete copy of the will, as executed (SCPA 1407 [3]). Accordingly, pursuant to SCPA 1407, a decree has been entered admitting to probate the photocopy of the will dated October 5, 2012 and awarding letters of administration c.t.a. to the petitioner.