Opinion
2016–13175 File No. 370/13
11-06-2019
In the MATTER OF Anthony MASSIMO, etc., Deceased. Lionel Markee, Appellant; v. Orsola Bartolini, et al., Respondents.
Michael F. Mongelli II, Flushing, NY, for appellant. Edward L. Koester, Bronx, N.Y. (Michael R. Treanor of counsel), for respondent Orsola Bartolini. John Bartolini, Jefferson Valley, NY, respondent pro se.
Michael F. Mongelli II, Flushing, NY, for appellant.
Edward L. Koester, Bronx, N.Y. (Michael R. Treanor of counsel), for respondent Orsola Bartolini.
John Bartolini, Jefferson Valley, NY, respondent pro se.
ALAN D. SCHEINKMAN, P.J., ROBERT J. MILLER, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ.
DECISION & ORDER In a proceeding pursuant to SCPA 1407 to admit a copy of a lost will and a lost codicil to probate, the petitioner appeals from a decree of the Surrogate's Court, Queens County (Peter J. Kelly, S.), dated August 15, 2016. The decree, after a nonjury trial, denied probate of the lost will and lost codicil.
ORDERED that the decree is affirmed, with costs.
In this proceeding to probate a lost will and a lost codicil, after a nonjury trial, the instruments were denied probate in a decree dated August 15, 2016, based on the Surrogate's Court's finding that the presumption of revocation had not been rebutted. We affirm. It is undisputed that the lost will and the lost codicil were properly executed, and the terms thereof were established by copies of the instruments. As such, the sole issue was whether the will was revoked by the testator.
When a will, although once possessed by a testator, cannot be found after the death of the testator, a strong presumption arises that the testator revoked the will by destruction (see Matter of Lewis, 25 N.Y.3d 456, 462, 13 N.Y.S.3d 323, 34 N.E.3d 833 ). The presumption may be overcome, and the lost will admitted to probate, if the proponent establishes that the will was not revoked by the testator during his or her lifetime (see Matter of Marotta, 137 A.D.3d 787, 788, 26 N.Y.S.3d 348 ). "The burden of proof is on the will proponent to show, by facts and circumstances, that the testator did not destroy the will with the intent to revoke it; mere speculation or suspicion is insufficient" ( Matter of DiSiena, 103 A.D.3d 1077, 1078–1079, 963 N.Y.S.2d 411 ; see Matter of Fox , 9 N.Y.2d 400, 407–408, 214 N.Y.S.2d 405, 174 N.E.2d 499 ; Matter of Staiger , 243 N.Y. 468, 472, 154 N.E. 312 ).
Here, we agree with the Surrogate's Court's conclusion that the proponent's evidence fell short of rebutting the presumption of revocation, and as such, the lost instruments were properly denied probate (see Matter of Philbrook, 185 A.D.2d 550, 552, 586 N.Y.S.2d 394 ).
SCHEINKMAN, P.J., MILLER, MALTESE and LASALLE, JJ., concur.