Surrogate Nora Anderson


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In an uncontested probate proceeding, petitioner sought to probate a conformed copy of a lost will, and an original Fourth Codicil—revoking three prior codicils—together as decedent’s will. Decedent’s lost will was drafted by attorney Braunschweig, who stated decedent left his office with the original and conformed copy of the will in his possession. While Braunschweig did not keep a copy, he confirmed the final draft was on his computer, stating it was identical to the conformed copy. Estate planning attorney Weiss claimed he spoke with decedent about consolidating his will and codicils, and while they conversed on updating decedent’s estate plan, decedent died before any work was done. Petitioner and one of decedent’s daughters found the conformed copy and Fourth codicil in his apartment, but were unable to find an original will. The court stated a presumption of revocation arose, but may be overcome by facts showing testator did not destroy the will with intent to revoke it. It ruled it was satisfied testator did not revoke his will, and same was validly executed. Provisions of the lost will were established by a photocopy proven to be a true and complete copy of the executed instrument. Accordingly, the will and codicil were granted probate.