Copy of Will Denied Probate

In a decision by New York County Surrogate Court Judge Rita Melia, Judge Melia found a copy of a will could not be submitted to probate. There is a presumption when the original will cannot be found that it was revoked by the person who made the will destroying it.

An uncontested action was submitted to Surrogate Melia. It was claimed the original will was lost. A copy of the will had been maintained by the attorney draftsmen, and said copy was submitted to be probated.

Presumption of Will’s Destruction

Justice Melia found in her decision where the decedent was the last person to have custody and control of the original will, and it could not be found at the time of that individual’s death, there is a presumption under New York Law the individual destroyed the will which constituted a revocation of the will. Justice Melia stated the law in New York is that this presumption was rebuttable only by clear and convincing evidence.

Attorney Draftsman Seeks to Have Will Probated

In this case, the attorney draftsman submitted an affidavit to the court. The affidavit indicated he was a close friend of the decedent. He was also a business associate for more than 20 years of the decedent. He and the decedent maintained constant contact during the past 20 years. The attorney stated in his affidavit in the event the decedent had decided to revoke the will he would have been contacted and a new will would have been drafted. He reached the conclusion since the decedent didn’t contact him, the will was lost and not destroyed and a copy of the will should be submitted to probate.

Surrogate Melia Denies Probate To the Copy of the Will

Justice Melia found the affidavit of the attorney draftsman was not sufficient to provide the court with clear and convincing evidence to overcome the presumption the original will had been revoked by destruction by the decedent. Justice Melia therefore denied probate of the copy of the will.