Matter of the Estate of Robyn R. Lewis

Summary

The New York Court of Appeals addressed whether a 1996 will should be admitted to probate after the decedent's divorce and death, where evidence suggested that multiple counterparts had been executed but only one was produced. The Court held that the evidence raised a presumption that the will had been revoked by destruction, but remanded for further proceedings to determine whether the documents were originals or copies and whether the presumption was rebutted.

Holdings

1. A subsequent will or other writing can revoke an earlier will only if the revoking instrument was executed with the formalities prescribed for execution and attestation of a will. Because the witness to the alleged 2007 will did not witness its execution, the claim that it revoked the 1996 will was properly rejected.
2. Evidence that the 1996 will was executed in multiple functional counterparts, that one counterpart was kept at the decedent's post-divorce residence, and that no will was found there after a thorough search was sufficient to raise the presumption that the decedent revoked the will by destruction.
3. The Surrogate should not have admitted the 1996 will to probate without resolving whether four original instruments or one original and three copies existed, requiring production or accounting for the duplicates, and determining whether the presumption of revocation was rebutted. The matter was remitted because the issues had not been properly framed and the proponent may not have had a fair opportunity to rebut the presumption.

Questions Presented

1. Whether testimony concerning an allegedly lost 2007 will could establish revocation of the 1996 will without proof that the later will was duly executed.
2. Whether the evidence concerning multiple duplicate or counterpart copies of the 1996 will raised a presumption that Lewis revoked that will by destruction.
3. Whether the probate court could admit the 1996 will without requiring production or accounting for the alleged duplicate instruments and resolving the resulting revocation issues.

Disposition

reversed_and_remanded