New York Court: No Prima Facie Entitlement to Admit Copy of Lost Will To Probate

In Matter of Giacobbe, the New York Supreme Court, Appellate Division, Second Department, affirmed an order denying cross motions for summary judgment seeking to admit a copy of a will (lost wills) to probate.

The Facts of Matter of Giacobbe

Petitioner sought to admit a copy of decedent’s 1990 will to New York probate.  Petitioner is the decedent’s sister and the sole beneficiary of the decedent’s estate under the 1990 will.  The 1990 will was drafted by and executed under the supervision of an attorney.

Objectant, decedent’s nephew, filed objections to probate of the 1990 will.  Objected alleged that the 1990 will was expressly revoked by a subsequent will executed by the Decedent in 2014.

Petitioner moved for summary judgment dismissing the objections to probate and admitting a copy of the 1990 will to probate under New York law. The objectant cross-moved for summary judgment dismissing the petition.

In his cross-motion, objectant contended that the 2014 will was duly executed in accordance with EPTL 3-2.1, and thereby revoked the 1990 will. In support of the cross motion, the objectant relied on, among other things, a copy of the 2014 will, the affidavit of one of the witnesses, Guiseppe Aiosa, stating that he had no recollection of any circumstances regarding the 2014 will, and the deposition testimony of Michele Straputicari, the other witness to the 2014 will.

In the order appealed and cross-appealed from, the Surrogate’s Court denied the motion and the cross motion.

When Can a Copy Of a Lost Or Destroyed Will Be Admitted To Probate In New York?

A lost or destroyed will may be admitted to probate in New York only if it is established that the will has not been revoked (see SCPA 1407[1]Matter of Lewis, 25 NY3d 456, 462). Read What Is a Lost Will Under New York Law?

Here, the petitioner failed to establish her prima facie entitlement to judgment as a matter of law on the issue of whether the 1990 will was revoked by the decedent in light of the existence of a copy of the purported 2014 will and the deposition testimony of the witness indicating that he witnessed the decedent’s execution of the 2014 will. Thus, the Surrogate’s Court properly denied the petitioner’s motion for summary judgment dismissing the objections and admitting the copy of the 1990 will to probate.

Prima Facie Entitlement To Admit Copy Of Lost Will To New York Probate

Just because the Petitioner did not meet her burden on summary judgment to have the 1990 will admitted to probate does not mean that the objectant was entitled to summary judgment. The Surrogate’s Court also properly denied the objectant’s cross motion for summary judgment dismissing the petition as he failed to demonstrate his prima facie entitlement to judgment as a matter of law.

EPTL 3-4.1(a)(1)(B) requires that a written revocation clearly indicate an intention by the testator to effect such revocation or alteration, executed with the formalities prescribed for the execution and attestation of a will (see Matter of Lewis, 25 NY3d 456). Therefore, the objectant has the burden of proving that the 2014 will indicated an intention to revoke the earlier will and was duly executed in conformance with the statutory requirements of EPTL 3-2.1(a) (see Matter of Collins, 60 NY2d 466, 468; Matter of Rottkamp, 95 AD3d 1338, 1339).  Read How Do You Revoke a Will In New York?

Objectant Relying On Copy Of Will To Establish Revocation Of Earlier Will Must Establish Admissibility Under Exception To Best Evidence Rule

Since the objectant was relying on a copy of the 2014 will, he was required to establish that the copy was admissible under the exception to the best evidence rule. Under the exception, “secondary evidence of the contents of an unproduced original may be admitted upon threshold factual findings by the trial court that the proponent of the substitute has sufficiently explained the unavailability of the primary evidence and has not procured its loss or destruction in bad faith” (Schozer v William Penn Life Ins. Co. of N.Y., 84 NY2d 639, 644 [citations omitted]; see Stathis v Estate of Karas, 130 AD3d 1008, 1010). The New York court stated:

Here, the objectant failed to adduce sufficient evidence concerning the lost 2014 will to establish as a matter of law that it was duly executed, and he failed to adequately explain the unavailability of the original 2014 will (see Schozer v William Penn Life Ins. Co. of N.Y., 84 NY2d at 644; Stathis v Estate of Karas, 130 AD3d at 1010). There is no evidence that the 2014 will was drafted by an attorney, that an attorney supervised its execution, or that the 2014 will was accompanied by a self-proving affidavit. Accordingly, the presumption of regularity that the 2014 will was properly executed and the presumption of compliance with the statutory requirements of EPTL 3-2.1 do not apply here (see Matter of Sabatelli, 161 AD3d 872). There is also no evidence as to the identity of the person who drafted the 2014 will or how the objectant obtained a copy of it. Moreover, even if the objectant met his threshold burden of explaining the unavailability of the original 2014 will, he failed to establish that the copy was a reliable and accurate portrayal of the original (see Stathis v Estate of Karas, 130 AD3d at 1010), or that the original 2014 will was duly executed. While Straputicari, the only witness who recalled the circumstances surrounding the execution of the 2014 will, was able to identify his signature on the copy, he could not describe the original 2014 will, other than by stating that it was written on “regular paper,” and he did not know the identity of the other person who witnessed the decedent signing the 2014 will.

The court affirmed the orders of the Surrogate’s Court denying the motions for summary judgment declining to admit the copy of the 1990 will to New York probate and also not granting the objectant’s motion, because neither party demonstrated prima facie entitlement under New York law.