Opinion
No. 2012–368306/A.
2012-08-9
In the Matter of the PROBATE OF the LAST WILL OF Tahira CHADDA, Deceased.
Tania U. Ali, P.C., Melville, NY, for co-executor, surviving husband, Safdar Chadda. Judith B. Raskin, Esq., Raskin & Makofsky, Garden City, NY, for co-executor, son, Nader Chadda.
Tania U. Ali, P.C., Melville, NY, for co-executor, surviving husband, Safdar Chadda. Judith B. Raskin, Esq., Raskin & Makofsky, Garden City, NY, for co-executor, son, Nader Chadda.
EDWARD W. McCARTY, III, J.
This is an uncontested proceeding to probate a copy of the last will and testament of the decedent, Tahira Chadda. The will is dated March 3, 1999, the original of which cannot be located; the decedent died October 8, 2008. The petitioners are the decedent's husband and son. All of the other distributees have either received citation or executed waivers and consents.
Pursuant to SCPA 1407, a lost or destroyed will or codicil may be admitted to probate only upon establishing: (1) that the will has not been revoked; (2) proper execution; and (3) the provisions of the missing will.
As to revocation, the petition is supported by an affirmation of the petitioners' attorney, wherein she explains that after the decedent's death, the attorney who drafted the will came to her office and displayed the original will to her. He also explained that after the decedent's death, the surviving spouse had made certain changes to the will. Upon being advised that the will could not be admitted to probate with the changes, the drafting attorney advised that he would retain possession of the original will until ordered by the court to produce it. An order to produce the will did, in fact, issue from the court, but petitioners' counsel was unable to effect service of the order upon the drafting attorney as his office had closed and it appeared that he no longer resided at his former address. The court notes that the attorney who drafted the will subsequently resigned from the bar during a disciplinary investigation. Under circumstances where the will was known to be in existence after the decedent's death, but was subsequently lost or accidentally destroyed, the presumption of revocation never arises (Matter of Fenstad, 22 Misc.2d 408 [Sur Ct, Kings County 1960] ). The court's file contains the affidavits of the attesting witnesses and the execution of the original instrument was supervised by an attorney, permitting the inference that the statutory requirements were met (Matter of Spinello, 291 A.D.2d 406 [2d Dept 2002] ), thus satisfying the second requirement of proof of due execution. The court is further satisfied that the original instrument's provisions have been established by a photocopy which is a true and complete copy of the original instrument as executed (SCPA 1407[3] ).
Accordingly, the copy of the decedent's will dated March 3, 1999 shall be admitted to probate (SCPA 1407).
Submit decree.