JOHN J. HOLLAND, SR. died a resident of Saratoga County on March 3, 2024. On May 21, 2024 a Probate Petition was filed by Scott A. Holland, seeking to probate the purported Last Will and Testament of the Decedent dated February 17, 2017.

In his May 6, 2024 Petition, the Petitioner has proffered a document purporting to be the Last Will and Testament of the Decedent. The Court notes that the instant Petition seeks to have a conformed copy (e.g. a photocopy of the Last Will) admitted to probate.

The process to have a lost or destroyed will admitted to probate is set forth in SCPA §1407 and is a heavy burden to satisfy. The use of this section may be employed in an attempt to have a copy admitted to probate, such is the case here. Under this statute, if the decedent's original will is lost or destroyed, the proponent must meet three requirements: (i) prove that the testator executed the will with the EPTL §3-2.1 formalities; (ii) establish all the provisions of the will, either by two credible witnesses or by a true copy of the will; and (iii) prove that the testator did not revoke the will.

The Court has reviewed the petition and, most saliently, the May 7, 2024 Affidavit of Due Diligence and the July 9, 2024 Affidavit of Donald Espey, Jr.

To satisfy these requirements, the Petitioner has provided the copy of the Will with an annexed copy of a self-proving affidavit, as well as an affidavit from the non-attorney draftsperson that confirms that the contents of the photocopy of the Will is a "true copy of the original Will which I drafted."

The most essential element under SCPA §1407 is the establishment that the Will has not been revoked. The caselaw following SCPA §1407 is clear. A presumption arises that a lost or destroyed will last in the testator's possession and control was revoked by the testator during her [*2]lifetime Matter of Fox, 9 NY2d 400 [1961]. A petitioner who seeks to probate a copy of a will has the burden of rebutting the strong presumption of revocation of the original, see, Matter of the Estate of Philbrook, 185 AD2d 550 [3rd Dept., 1992].

It is noted that waivers and consents have been received from all effected parties, and it has been held that the consent of distributees, or at least the majority of them, to the probate of a lost will or their failure to object can be of assistance to the court in determining whether to admit the probate of a lost will. See, Matter of Locker, N.Y.L.J., Feb. 9, 2009, at 29, col. 5 (Sur. Ct. Bronx County). However, these determinations are fact specific. The facts in the Locker case diverge from those presently before the Court. In Locker, the photocopy of the will sought to be admitted to probate was found in a metal box among the decedent's possessions where the decedent had told his executor it was stored. Here, the facts before the Court demonstrate that the photocopy was kept in the possession of a friend, with the decedent purportedly retaining the original, and the copy was not furnished until after decedent's passing.

As the burden of proof is so high, courts often find that the proponent fails to meet their burden of showing that the will was not in the possession of the testator and thus was not assumed to be revoked. Matter of Gray, N.Y.L.J., May 12, 1987, at 15, col. 6 [Sur. Ct. Nassau County]. In Gray the court found that as to the fact of possession by the testator himself, the record was silent and the possibility of his possession was not excluded, and as such, the proponent failed to carry her burden and probate was denied. Critically, in the instant matter, the Court notes that the affidavit of Donald Espey avers that the original of the Will was last in the possession of the decedent.

It is also noted that the affidavit suggests that perhaps two identical wills were executed. Courts have held that the failure to explain the inability to produce both or all copies of will where one of them had been in possession of decedent raises presumption that will is revoked. In re McGuigan's Will, 10 Misc 2d 865 [NY Sur. Ct. 1957].

In the instant Petition, there has been nothing submitted to confirm that the proffered Will (or Wills) was or was not revoked by the decedent during his lifetime. Indeed, on the record presently before the Court, it would appear likely that there was but one original Will which was last known to be in the possession of the Decedent, and as such, presumed revoked.

Given the above, the Court finds that it has insufficient facts to determine the sufficiency of the Will and cannot on these facts admit the Will to probate.

Accordingly, as the Court has jurisdiction over all parties hereto, on the Court's own motion, it is hereby

ORDERED, that a conference is scheduled to be held on September 18, 2024 at 11:30AM at the Saratoga County Surrogate's Court, Part 3, 30 McMaster Street, Building 3, Ballston Spa, New York 12020 for purposes of setting a schedule for a hearing to determine if the subject Will was revoked or not pursuant to SCPA §1407.