Surrogate's Court, New York County, December 29, 2005

APPEARANCES OF COUNSEL

McGarry & Simon, New York City (James McGarry of counsel), for petitioner. Eliot Spitzer, Attorney General (Howard Holt of counsel), for ultimate charitable beneficiaries. Eugene Tsui, respondent pro se.

Eve Preminger, S.

Paul K.P. Huang died August 19, 2004 leaving an instrument dated October 7, 1998 which is being offered for probate. Petitioner, in his second amended petition, asks the court to deny probate to seven other writings, each of which is later in date than the proffered instrument. The first six, being unattested, are inadmissible to probate (see EPTL 3-2.1). The seventh, dated April 29, 2004, is a photocopy of an instrument which was executed under the supervision of an attorney; its due execution, therefore, is presumed (Matter of Rosen, 291 AD2d 562 [2002]). Moreover, the attached affidavit of attesting witnesses satisfies the requirements of SCPA 1406 (1). The original, however, cannot be located. The supervising attorney avers that after the execution of the document—which he believes decedent drafted himself—in decedent's home, decedent retained possession of the original. The strong presumption, therefore, is decedent revoked the will by destruction (Matter of Fox, 9 NY2d 400, 407 [1961]). Accordingly, the photocopy of the April 29, 2004 instrument is inadmissible (Matter of Passuello, 169 AD2d 1007 [1991]).

EPTL 3-4.6 (a) provides: "If after executing a will the testator executes a later will which revokes or alters the prior one, a revocation of the later will does not, of itself, revive the prior will or any provision thereof."

Decedent's clear intent to revoke all prior wills by means of the April 29, 2004 instrument is both explicit: "I, Paul K. P. Huang, being of sound mind, publish and declare this to be my last Will and Testament, revoking all former wills," and implicit: the complete disposition of decedent's estate (see Matter of Lautz, 55 Misc 2d 412, 413 [1967]). There is no evidence the October 7, 1998 instrument, or any other prior instrument, was revived (see EPTL 3-4.6 [b]); accordingly, decedent died intestate (see Estate of Mangan, NYLJ, Oct. 28, 1994, at 34, col 2).

Probate of the proffered instrument is denied; preliminary letters testamentary heretofore issued to petitioner are revoked.