Decedent Anne Raynette Robinson-Murphy [hereafter, Anne] died on August 27, 2014 at the age of 72. At the time of her death, Anne was survived by her husband Girard Murphy [hereafter, Girard] and seven nieces and nephews. Although Anne had executed a Will in 2008, the original of that Will has never been produced.^[FN1]

Now pending before the Court is a petition pursuant to SPCA 1407, seeking to probate a copy of decedent's Last Will and Testament, dated August 24, 2008. The Will nominates Anne's niece, Raynette T. Robinson-Hunt [hereafter, Raynette] as executor, and after payment of estate expenses and debts, and a specific bequest, leaves the residuary estate to her nieces and nephews.^[FN2]

On consent, an evidentiary hearing took place before a Court Attorney of this court on a hear and report basis, and, pursuant to SCPA 506(6)(c), the filing of a referee report was waived. Raynette testified, as did Keli C. Robinson-Smith [hereafter, Keli], who is Anne's niece and a beneficiary under the Will. Although they are interested parties, I find that the testimony given by Raynette and Keli is credible and persuasive in all respects.

SPCA 1407 requires that the proponent of the Will copy establish that the Will was not revoked, that it was duly executed and that all the provisions of the Will are clearly proved by each of at least two witnesses or by a copy or draft of the Will proved to be true and complete. As I pointed out in Matter of Faragiano, 46 Misc 3d 646, 647 [2014]:

"When a previously executed Will cannot be found after death, there is a presumption that it was destroyed by the testator if it was in her possession (see Matter of DiSiena, 103 AD3d 1077 [2013], Matter of Demetriou, 48 AD3d 463, 464 [2007] and Matter of Evans, 264 AD2d 482 [1999]). If the presumption applies, the proponent will then be required to establish that the testator did not revoke it during her lifetime (Matter of Fox, 9 NY2d 400, 407 [1961]). And, while the presumption is rebuttable, it may only be overcome by clear and convincing evidence (Matter of Millen's Will, 30 NYS2d 274, affd, 264 App Div 936 [1942], affd 291 NY 613 [1943])' (Matter of Eisenstadt, NYLJ, Jan. 18, 2011, at 20, col 4)."

Raynette testified that she and her aunt Anne were very close and lived next door to each other. Raynette's father was Anne's brother, and the Robinson family was well known and invested in the community. Anne lived at 106 Krettner, which was given to her by her father, and Raynette lived in a home located next door at 110 Krettner Street. At the time of her death, Anne owned 106 Krettner, an additional home located at 110 Krettner, as well as several vacant lots on Sherman Street in Buffalo, New York, all of which were given to her by her father, William Robinson, a former Erie County legislator.

In late August of 2008, Anne called Raynette to come next door to have a talk. Anne told Raynette that she had made a Will using an online service called LegalZoom.com, and that she had named Raynette as the executor. She handed Raynette a copy of her Will, which was executed on August 24, 2008 at Anne's church. It had been witnessed by Craig W. Douglass, Yvonne H. Douglass, and Kenneth A. Taylor (who are respectively, the pastor, the pastor's wife, and the deacon of Centennial AME Zion Church).^[FN3]

Anne gave Raynette a copy of her Will and told Raynette that the original Will was [*2]stored in her bedroom closet upstairs in her home. During their meeting, Anne also shared with Raynette information regarding her various bank accounts, and she told Raynette that she wanted her to handle her affairs should anything happen to her. Raynette testified that she never saw the original Will, but kept the copy of the Will for safekeeping until Anne's death. With the exception of their initial talk, Raynette testified that she and Anne never discussed the Will or Anne's finances again.

At the time Anne executed her Will, she had never been married, and she had no children. However, on October 29, 2011, Anne married Girard Murphy. Raynette and Keli both testified that the wedding was attended by several hundred people, including the entire Robinson family. Anne and Girard resided in the house at 106 Krettner, and, after her marriage, Anne remained close with her nieces and nephews.

In 2012, shortly after her marriage to Girard, Anne was diagnosed with cancer, from which she died on August 27, 2014. Anne's niece Keli testified that she regularly spoke with Anne, approximately once a week, and on August 6th or 7th, 2014, a few weeks prior to Anne's death, Keli and Anne spoke. Keli had called Anne to see how she was feeling, and during their conversation, Anne told Keli that she wanted Keli and Keli's sons, James and Kione, to have the lots that she owned on Sherman Street.

Keli explained that she lives at 30 Sherman Street and owns three vacant lots next to her home. Those lots were given to her by her grandfather, William Robinson. Keli testified that every time a house was torn down on her street her grandfather would purchase the vacate lot, so that Sherman Street became known in the family as "Robinson Boulevard". Anne owned several of these lots, and told Keli that, because she and her sons had been maintaining the lots and resided on the street, she wanted to talk to a lawyer about transferring the deeds to the real property to them. Anne also told Keli that she wanted to transfer ownership of 114 Krettner to Phillip Robinson, who is Keli's brother and also Anne's nephew and a beneficiary under Anne's Will. Anne told Keli that she wanted Phillip to have the property because he was William Robinson's only grandchild who did not own a piece of the family real property.

Anne also told Keli that she had a Will, although they did not discuss its contents. Shortly after their discussion, Anne was admitted to the hospital, and then to hospice care, where she died. Anne died still owning the real property she had spoken to Keli about transferring.

Prior to Anne's death, Raynette had a conversation with Girard in which he told her that Anne had removed Raynette from a jointly held bank account and had instead named Girard as the joint account holder. Raynette learned after Anne's death that Anne also had made some changes to a Jackson Alliance Group annuity and life insurance policy that she owned. Before her marriage, Anne had named her seven nieces and nephews, who are also the named Will beneficiaries, beneficiaries of both the Jackson annuity and the life insurance policy. In June 2012, Anne changed the beneficiary of the Jackson life insurance policy to Girard, but the annuity beneficiary designation naming the nieces and nephews remained unchanged. Also unchanged was a MetLife insurance policy owned by Anne which named the seven nieces and nephews as beneficiaries.

Following, Anne's death, Girard collected $110,000 from the Jackson life insurance policy. Anne's seven nieces and nephews collected and equally shared the $100,000 Jackson annuity and the $38,000 MetLife insurance proceeds.

In September 2014, Raynette asked Girard if Anne had changed her Will when they got married. Girard told her that there was no Will, and that he and Anne had never discussed a [*3]Will. Raynette gave Girard the copy of the Will which he reviewed, and he then allegedly said that he had done research and that the copy was not valid because it was not notarized and that, as Anne's surviving spouse, he was entitled to fifty percent of her estate.

Ultimately, according to her testimony, Raynette was allowed to inspect Anne's home at 106 Krettner. Raynette testified that she searched the closet where Anne had told her the original Will was kept, but she could not find the original August 24, 2008 Will, nor did she find any Will in the house.

Although I find that the Will was validly executed pursuant to the requirements set forth in EPTL 3-2.1, Raynette has failed to meet her burden of proving that Anne did not revoke her will.

Based on the testimony presented at the hearing, there is no proof to overcome the presumption that Anne, who had her original Will in her possession, had destroyed her August 24, 2008 Will, thereby revoking it and dying intestate. Indeed, Anne's post-marriage changes to some of her non-probate assets (which benefitted her new husband), and her discussions about new dispositions she was considering to certain of her real property, show that Anne was rethinking her estate plans. Destruction of her 2008 Will would also be consistent with such thinking.

Accordingly, probate of the copy of Anne's August 24, 2008 Will must be, and it hereby is denied, and Anne's estate shall pass by intestacy.^[FN4] Finally, I direct the parties to appear before me on Monday, April 13, 2015 at 9:30 am, to set a schedule for whatever next needs to be done in the administration of this estate.

This decision shall constitute the Order of this Court and no other or further order shall be required.