Opinion
563 CA 17–01938
05-04-2018
In the MATTER OF the ESTATE OF Nina SCOLLAN, Deceased. Theresa Millus, Petitioner–Appellant, v. Sergey Scollan, Respondent–Respondent.
COMARDO LAW FIRM, P.C., AUBURN (BENJAMIN M. KOPP OF COUNSEL), FOR PETITIONER–APPELLANT. BOYLE & ANDERSON, P.C., AUBURN (DAVID G. TEHAN OF COUNSEL), FOR RESPONDENT–RESPONDENT.
COMARDO LAW FIRM, P.C., AUBURN (BENJAMIN M. KOPP OF COUNSEL), FOR PETITIONER–APPELLANT.
BOYLE & ANDERSON, P.C., AUBURN (DAVID G. TEHAN OF COUNSEL), FOR RESPONDENT–RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, AND NEMOYER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner commenced this proceeding seeking, inter alia, admission to probate of a photocopy of the will of Nina Scollan (decedent) dated March 2008. In her affidavit supporting the amended petition, petitioner asserted that she was seeking the admission of the photocopy of the will inasmuch as "the original has been lost or destroyed." Petitioner further asserted that she was decedent's primary caregiver during the last 7 to 10 years of decedent's life, decedent spoke disparagingly of respondent, decedent's son, and decedent told petitioner that she "would be receiving everything" upon decedent's death.
Surrogate's Court properly granted respondent's motion for summary judgment dismissing the amended petition. "A lost or destroyed will may be admitted to probate only if ... [i]t is established that the will has not been revoked" ( SCPA 1407[1] ). " ‘When a will previously executed cannot be found after the death of the testator, there is a strong presumption that it was revoked by destruction by the testator’ " ( Matter of Fox, 9 N.Y.2d 400, 407, 214 N.Y.S.2d 405, 174 N.E.2d 499 [1961] ). That "strong presumption of revocation by the testator ... stands in the place of positive proof when a will previously executed cannot be found after a testator's death" ( Matter of Philbrook, 185 A.D.2d 550, 552, 586 N.Y.S.2d 394 [3d Dept. 1992] ; see Matter of Staiger, 243 N.Y. 468, 472, 154 N.E. 312 [1926] ). Respondent was thus entitled to rely on the presumption to meet his burden on the motion (see Matter of Winters, 84 A.D.3d 1388, 1389, 923 N.Y.S.2d 730 [2d Dept. 2011] ; Matter of Evans, 264 A.D.2d 482, 482, 694 N.Y.S.2d 453 [2d Dept. 1999] ; Matter of Passuello, 169 A.D.2d 1007, 1008, 565 N.Y.S.2d 281 [3d Dept. 1991] ). In addition, petitioner's own submissions established that decedent asked to retain the original will in her possession, and the attorney who drafted the will had the original delivered to decedent shortly after its execution (cf. Matter of Castiglione, 40 A.D.3d 1227, 1229, 837 N.Y.S.2d 360 [3d Dept. 2007], lv. denied 9 N.Y.3d 806, 842 N.Y.S.2d 782, 874 N.E.2d 749 [2007] ).
In opposition to the motion, petitioner failed to present evidence sufficient to raise a question of fact whether the presumption of revocation may be overcome (see Winters, 84 A.D.3d at 1389, 923 N.Y.S.2d 730 ; Evans, 264 A.D.2d at 482, 694 N.Y.S.2d 453 ; Passuello, 169 A.D.2d at 1008, 565 N.Y.S.2d 281 ). The presumption is unaffected by evidence that decedent's attorney retained a copy of the will at his office and that decedent never advised him that she intended to revoke the will (see Matter of Robinson, 257 App.Div. 405, 407, 13 N.Y.S.2d 324 [4th Dept. 1939] ). Nor may the presumption be overcome with hearsay accounts of decedent's statements concerning her testamentary intentions (see Fox, 9 N.Y.2d at 406, 214 N.Y.S.2d 405, 174 N.E.2d 499 ; Matter of Kraus, 17 A.D.2d 653, 653, 230 N.Y.S.2d 533 [2d Dept. 1962] ). Finally, while the presumption of revocation may be overcome with circumstantial evidence (see Matter of Mittelstaedt, 278 App.Div. 231, 233, 104 N.Y.S.2d 378 [1st Dept. 1951] ), "[p]etitioner[ ] cannot succeed on mere speculation and suspicion" ( Philbrook, 185 A.D.2d at 552, 586 N.Y.S.2d 394 ). Rather, petitioner must present "facts and circumstances which show that the will was fraudulently destroyed during the testator's lifetime" ( Evans, 264 A.D.2d at 482, 694 N.Y.S.2d 453 ; see Collyer v. Collyer, 110 N.Y. 481, 486, 18 N.E. 110 [1888] ). Here, petitioner offered nothing more than speculation and suspicion to support her theory that respondent or someone acting on his behalf fraudulently destroyed the will. In sum, therefore, "petitioner failed to raise an issue of fact as to whether she can overcome the presumption that the testator destroyed the will with the intention to revoke it" ( Evans, 264 A.D.2d at 482, 694 N.Y.S.2d 453 ).