Presumption Overcome: Lost Will Admitted to Probate

In Matter of Gillen, 2008 NY Slip Op 50942 (Decided May 7, 2008), Nassau County Surrogate John B. Riordan, admitted a photocopy of a 27 year old will to probate, even though it appeared that the original was last in possession of the decedent. In implicitly finding that the presumption of revocation was overcome, the Court focused on the facts that (1) the will was executed only about one month prior to the decedent's death, (2) the sole legatee was the only natural object of her bounty, (3) although the decedent's death was many years ago, no search was made for her will until recently, (4) a the photocopy of the will was found among the decedent's papers, and (5) the will was executed in the decedent's home two days before her admission into the hospital where she died one month later.

On these facts the Surrogate found it "extremely unlikely that the decedent, knowing that her death was near, would go to the trouble of having a will prepared and executed, which left her estate to her only child, and then destroy the will within 48 hours. What seems infinitely more likely is that the original will was accidentally lost or destroyed, either when the home was cleaned out after the decedent's death, or in the ensuing 27 years since then."