Cite as: Rea Muelhaus, 2012-675/A, NYLJ 1202587548276, at *1 (Surr., SUF, Decided September 6, 2012)

Surrogate John M. Czygier

 

Click here to see Judicial Profile

Decided: September 6, 2012

 

*1

 

In this probate proceeding, petitioner offers for probate as the last will and testament of the above named decedent a mutilated original as well as a conformed photocopy of an instrument dated July 20, 2011, the original of which was allegedly destroyed by an unknown party, without having been revoked by decedent.

Jurisdiction has been obtained over all persons listed in the petition as necessary parties, all of whom have consented to the relief requested. Petitioner is decedent's son and one of the two co-executors nominated in the will.

A hearing was held before the undersigned on July 25, 2012, at which decedent's son, Robert C. Francis, the petitioner herein, testified. In addition, a stipulation of settlement was thereafter spread on the record between petitioner and his brother, Kurt Francis, decedent's only other distributee, pursuant to which the propounded instrument would be admitted to probate and letters testamentary issued to both nominated co-executors, Robert C. Francis and Kurt Francis.

At the hearing, the following facts were established. On

 

*2

 

December 31, 2011, decedent suffered a stroke. Upon learning this, petitioner, who lives in California, flew to New York on January 1, 2012. Decedent was in Southampton Hospital, and was paralyzed on the right side of her body. She left the hospital, by ambulance, and was transported to the home of Kurt Francis, where she died on January 8, 2012. Decedent never returned home after her hospitalization.

Decedent had advised petitioner of the location of her will, the instrument offered for probate herein. On January 3, petitioner went to decedent's home to check on the furnace and the overall status of the home. During that visit, petitioner found decedent's will where decedent indicated it would be, contained in an unsealed will envelope [Petitioner's Exhibit 2], inside a larger, plastic envelope which also contained the conformed photocopy of decedent's will [Pet.'s Exh. 1]. Petitioner did not, at that time, look inside the will envelope.

On January 6, petitioner returned to decedent's home with his wife. On this visit, petitioner opened the plastic envelope, removed the will envelope, and removed the original will from the will envelope. Petitioner and his wife found the original will intact. Once petitioner and his wife were satisfied that the copy was a true and complete copy of the original will, petitioner returned the original will to the will envelope; the will envelope to the larger plastic envelope; and the plastic envelope to the dresser drawer where it had been stored. Petitioner retained the photocopy of the will. Being offered for probate are the pieces of the original will and the copy of it, as identified by petitioner based on the documents he observed on his two visits to decedent's home in January 2012.

Petitioner returned to California on January 8, 2012. On January 9 petitioner called his brother, Kurt. During this telephone conversation petitioner learned that his mother passed away on January 8. On January 18, 2012, petitioner learned from his brother that the original will was in the will cover, inside the larger plastic envelope, in its present state, torn into five pieces.

The undisputed proof established that decedent, who was paralyzed on the right side of her body as a result of her

 

*3

 

stroke, never returned home after her hospitalization. After decedent left her house for the last time, petitioner and his wife viewed decedent's intact will. Decedent never had an opportunity to revoke or otherwise physically destroy the will, therefore the destruction of the will must have been at the hands of some person other than the decedent.

Conclusion

The proof establishes that the original executed instrument was intact on January 6, 2012. Decedent, who was immobile at all times after her stroke, and never thereafter returned home, died on January 8, 2012, never having access to her will after her stroke to revoke it. Where, as here, "the will is shown not to have been in testator's possession, there remains neither a presumption of revocation nor an inference of fact suggestive of revocation to be met by the proponent of the instrument" (In re Suarez's Estate, 131 NYS2d 419).

It further appears that said will dated July 20, 2011, was duly executed and at the time of execution, decedent was in all respects competent to make a will and not under restraint. The court further finds that the terms of the July 20, 2011, will were established as identical to those set forth in the torn original and conformed photocopy of the will filed herein by petitioner (SCPA 1407(3)). The genuineness of the will having been shown to the satisfaction of the court, probate thereof is granted (EPTL 3-2.1; SCPA 1407, 1408). Accordingly, as the conformed photocopy of the propounded instrument is the most legible version of the will, it is hereby admitted to probate as the last will and testament of the above-named decedent (SCPA 1407; Estate of Gray, 143 AD2d 751).

Upon entry of the decree herein, letters testamentary shall issue to the petitioner and his brother, upon qualification and without the posting of a bond, as same is dispensed with according to law.

Settle decree on notice, incorporating the terms of the destroyed will dated July 20, 2011.