This is an uncontested proceeding pursuant to SCPA 1407 to probate a photocopy of a written instrument dated March 17, 1998 (the “propounded instrument”) which purports to be the decedent’s last will and testament. The petitioner is the decedent’s grandson and the propounded instrument’s nominated executor. The decedent died a widow on March 2, 2018 at the age of 91, survived by a son and a daughter. Those children were cited but did not appear on the court’s virtual platform on the return date, nor have they opposed the petitioner’s application to date. The propounded instrument specifically devises 50 percent of the decedent’s interest in real property to the petitioner, and gives the decedent’s remaining interest in the realty to her children in equal shares. The residuary is left to the petitioner and the children in the same proportions as the devise of the real property. Furthermore, the propounded instrument bears the decedent’s signature and contains an attestation clause signed by two witnesses who also provided SCPA 1406 affidavits which state, inter alia, that an attorney supervised the instrument’s execution and the decedent appeared in all respects competent to make a will. Annexed to the propounded instrument is a self-proving affidavit which was ostensibly signed by the witnesses on the date the instrument was executed. In support of the application, an affidavit is submitted from the petitioner’s brother, who avers that in 1998 he saw the decedent give the petitioner the original of the propounded instrument (the “original will”) and a photocopy of same. Thereafter, in June 1999, the petitioner gave him the original will to hold, but not the photocopy. According to the brother, he kept the original will at his home in an accordion file with other important papers. After the decedent died, he checked the accordion file but the will was not there. The brother further states that the decedent did not have access to the accordion file, nor did she ever evince an intention to revoke the original will. Instead, the brother alleges that the decedent continuously referred to the will and her desire to have the petitioner serve as her estate’s executor. Finally, the brother asserts that the photocopy offered for probate here is a true and complete copy of the original will. In addition, the petitioner submits his own affidavit which corroborates that he gave the original will to his brother for safekeeping. The affidavit also states that the photocopy being offered for probate here is the same one that the petitioner received from the decedent in 1998, along with the original will; the photocopy is an exact replica of the original will; and the decedent never indicated that she wanted to revoke the will. As the original will was not lost while in the decedent’s possession, the presumption of revocation never arose (see Matter of Keane, 65 Misc3d 1229[A] [Sur Ct, Kings County 2019]; Matter of Ita C. Ford, 1999 NYLJ LEXIS 1903 (Sur Ct, Westchester County 2019]; Matter of Zaretsky, NYLJ, Jan. 30, 1998 at 29, col 3 [Sur Ct, Kings County 1998]. Based upon the proof submitted and the lack of any opposition from the decedent’s children, who are adversely affected by the probate of the propounded instrument, the court is satisfied that: (1) the will dated March 17, 1998 was not revoked by the decedent during her lifetime (SCPA 1407 [1]); (2) the will was validly executed and, at the time of its execution, the testatrix 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 a photocopy which was established as a true and complete copy of the original 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 March 17, 1998 and awarding letters testamentary to the petitioner. Decree signed. Dated: October 18, 2022
