Opinion
No. 2012–2674.
2013-01-29
ESTATE OF Catherine CAFFERKY, Deceased.
Anthony L. Verelli, Esq., for Petitioner, Maria Doherty, Executor.
NELIDA MALAVE–GONZALEZ, J.
This is an uncontested proceeding to probate, as a lost will, a photocopy of an instrument dated May 3, 1983. On the original return date of the proceeding, the proponent's attorney indicated that the original instrument was kept by the drafting/supervising attorney who was one of three witnesses to the execution of the original instrument and is deceased, and based on his computer searches and other attempts to locate the two other witnesses, he believed they were deceased. Based on this representation the proponent's attorney, in effect, amended the petition to request that the photocopy of the instrument be admitted to probate both as a lost will and as an ancient document. Although the attorney indicated that he would submit a brief supporting his additional position by December 31, 2012, that date has now passed without any additional submission. Nonetheless, the ancient document issue will be addressed.
The decedent died on January 4, 2009 at the age of 81. Her 13 distributiees are three surviving siblings including the proponent, and 10 nieces and nephews who are the issue of three predeceased siblings. One niece filed a waiver and consent to probate, and jurisdiction was obtained over all remaining distributees without any appearance in opposition. The photocopy of the four-page instrument is apparently signed by the decedent, witnessed by three witnesses including the drafting/supervising attorney who is the nominated executor, contains an attestation clause, and is annexed to the original backing of the drafting/supervising attorney. The copy of the instrument leaves a certain number of stock shares, all bonds and the residuary estate to the proponent, the nominated successor executor under the instrument, it leaves a specified number of stock shares to one religious organization, and it leaves small monetary legacies to other siblings, many of whom predeceased the decedent, and to another religious institution.
The proof establishes that the original instrument was kept by the deceased drafting/supervising attorney at his office in the Bronx, and that office no longer exists. After the decedent's death, the photocopy of the instrument was retrieved from the decedent's bedroom table dresser where she kept all personal documents. On the reverse side of the original backing to the photocopy is an original blue stamp “COPY” and in handwriting appears the decedent's name and “Original at offices of:” followed by the typewritten name of the deceased attorney and the typewritten address of his now-closed office. A niece who lived with the decedent for 19 years avers that 15 years prior to the decedent's death, the decedent showed her the propounded photocopy of the instrument which, even then, was kept in the decedent's bedroom dresser table, and the decedent identified it as a copy of her will stating that the original was at the attorney's office. The decedent never advised the niece that she revoked or changed her original will. The niece also submits a handwriting affidavit identifying the decedent's signature on the photocopy of the instrument. The proponent submits a separate handwriting affidavit identifying the signature of the deceased drafting/supervising attorney who witnessed the instrument, and requests that the court dispense with the testimony of the three deceased witnesses.
As a preliminary matter, a will admitted to probate as an ancient document is exempt from the requirements of SCPA 1405(4), which requires that where the witnesses to a will are deceased, the handwriting of the testator and at least one witness be proved (see SCPA 1405[4]; Matter of Derrick, 88 AD3d 877, 878 [2011] ). “A will may be admitted to probate as an ancient document where it is more than 30 years old, taken from a natural place of custody and is unsuspicious in nature” ( see Matter of Gallagher, 23 Misc.3d 1126[A], 2009 N.Y. Slip Op 50951[U] [2009] [this court applies 30–year rule]; Matter of Brittain, 54 Misc.2d 965 [1967]; compare Matter of Santoro, 31 Misc.3d 1231[A], 2011 N.Y. Slip Op 50920[U] [2011] [noting that some courts apply the common law 30–year rule while other courts, such as Surrogate's Court, Nassau County, adopt the more liberal 20–year federal rule], with Matter of Cole, NYLJ, Oct. 3, 2001, at 2, col 6 [Surrogate's Court, Westchester County applies 30–year rule], and Matter of Devereaux, NYLJ, Nov. 1, 1993, at 31, col 3 [Surrogate's Court, Queens County applies 30–year rule and declines to apply 20–year rule] ). The required 30–year period is measured from the date of execution of the will to the date the will is proffered for probate ( see Matter of Gallagher, 23 Misc.3d 1126[A], 2009 N.Y. Slip Op 50951[U] ). Here, the photocopy of the instrument dated May 3, 1983 was filed in November, 2012 and, even now, it is not “more” than or “at least” 30 years old (id.). As the photocopy does not qualify as an ancient document ( see Matter of Pollack, NYLJ, Dec. 28, 1993, at 27, col 1), the branch of the petition, as amended, seeking to admit the photocopy as an ancient document is denied.
Generally, when a previously-executed will cannot be found after the death of the testator, there is a strong presumption that it was revoked “by the destruction of the testator” (Matter of Fox, 9 N.Y.2d 400, 407 [1961], quoting Collyer v. Collyer, 110 N.Y. 481, 486 [1888];Matter of Gottlieb, 75 AD3d 99, 105 [2010],lv denied16 NY3d 706 [2011] ). Pursuant to SCPA 1407, a lost or destroyed will may be admitted to probate only if: (1) it is established that the will has not been revoked; and, (2) execution of the will is proved in the manner required for the probate of an existing will; and, (3) all of the provisions of the will are clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of the will proved to be true and complete (see SCPA 1407; see also Matter of Castiglione, 40 AD3d 1227, 1229 [2007],lv denied9 NY3d 806 [2007];Matter of Pollack, NYLJ, Dec. 28, 1993, at 27, col 1). With respect to the first requirement of SCPA 1407, the affidavit of the niece and the handwritten notation on the original backing of the photocopy, together, demonstrate that the decedent never possessed the original instrument and, instead, the original was always kept at the now closed office of the deceased drafting/supervising attorney. As the original will was not lost while in the decedent's possession, and the photocopy of the original was found unaltered in the place where the decedent always kept it, the presumption of revocation never arose ( see Matter of Conti, NYLJ, July 26, 2007, at 32, col 5; Matter of Ortiz, NYLJ, Jan. 29, 2007, at 33, col 4; Matter of Gethins, 97 Misc. 561 [1916] ). Accordingly, based upon the proof submitted, the court is satisfied that the original instrument dated May 3, 1983 was not revoked by the decedent during her lifetime (see SCPA 1407 [1] ).
With respect to the second requirement of SCPA 1407(2), the photocopy indicates that the original instrument was attorney-drafted and supervised giving rise to a presumption of regularity that the will was properly executed ( see Matter of Halpern, 76 AD3d 429, 431 [2010],affd16 NY3d 777 [2011] ), and contains an attestation clause which raises a presumption of its validity ( see Matter of Cottrell, 95 N.Y. 329, 335 [1884];Matter of Derrick, 88 AD3d at 877;Matter of Halpern, 76 AD3d at 341). As it is established that the two non-attorney witnesses and the attorney who also witnessed the original instrument are deceased, their testimony is dispensed with (see SCPA 1405[1], [4] ). Based on the affidavits of the niece and the proponent proving the signatures of both the decedent and the deceased attorney-witness (see SCPA 1405[4] ), the court finds that due execution is proven in the manner required for the probate of an existing will (see SCPA 1407[2]; Matter of Quinlan, NYLJ, Oct. 13, 1993, at 24, col 4).
Finally, the third prong of SCPA 1407(3) requires that “[a]ll of the provisions of the will” be “clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of the will proved to be true and complete” (emphasis added). To satisfy this requirement, either all of the actual and substantive provisions of the will must be proven independently of the draft or copy (see SCPA 1407[3]; Matter of Kleefeld, 55 N.Y.2d 253 [1982],rehg denied55 N.Y.2d 253 [1982] [concerning predecessor statute to current SCPA 1407(3); Matter of Kalenak, 182 A.D.2d 1124 [1992] [corroboration as to conformed copy]; Matter of Smith, 114 Misc.2d 769 [1982] [also concerning predecessor statute] ), or there must be independent corroborative evidence that the photocopy is an exact replica of the entire original will ( see Matter of Castiglione, 40 AD3d at 1229 [attorney-draftsperson submits sworn statement that copy was an exact replica of original will] ).
Here, the photocopy itself eliminates the two witness alternative requirement; however, as the drafting/supervising attorney and two other witnesses are deceased, there is no person familiar with the original will who can state that the copy is an exact replica thereof (cf.id.). Nonetheless, given that the photocopy is regular on its face, complete, is annexed to its original backing which bears the original blue “COPY” stamp and a handwritten notation stating that the original is held at the office of the deceased drafting/supervising attorney, and given the evidence that the decedent identified it during her lifetime as a photocopy of her original will, the court is satisfied that the provisions of the lost will were proved by the photocopy which was established circumstantially to be a true and complete copy of the original will as executed (see SCPA 1407[3]; Matter of Quinlan, NYLJ, Oct. 13, 1993, at 24, col 4 [finding SCPA 1407(3) satisfied where conformed copy was found among the decedent's possessions in a sealed envelope bearing similar notations] ).
Accordingly, the photocopy of the will dated May 3, 1983 is entitled to be admitted to probate (SCPA 1407), and the remaining branch of the amended petition is granted.
Submit decree.