Newsletter
Conformed Copy of Will Not Admitted to Probate
November 1, 2023
Authors
Charles R. Jacob III
Of Counsel, New York
cjacob@goulstonstorrs.com+1 212 878 5143
Jennifer L. Mikels
Director, Boston
jmikels@goulstonstorrs.com+1 617 574 3854
Gary M. Ronan
Director, Boston
gronan@goulstonstorrs.com+1 617 574 3593Related Expertise
In Matter of Estate of Slezak, 218 A.D.3d 946 (3rd Dep't July 13, 2023)
Where a conformed copy of a will was located where the decedent said his will could be found, no potential heir contested the validity of the will and testimony established that the will was not revoked, should the conformed copy of the will be admitted to probate? In Matter of Estate of Slezak, 218 A.D.3d 946 (3rd Dep’t July 13, 2023), New York’s Appellate Division, Third Department, answered that question in the negative, indicating how difficult it can be to probate a copy of a will rather than the original
In Slezak, testimony established that the decedent told a witness that his will was in a lockbox under his bed, and that he had left everything to a certain beneficiary. When the lockbox was opened, there was a conformed copy of the will, with the decedent’s and the witnesses’ signatures indicated with “s/[names].” The will left everything to the beneficiary indicated by the testimony. No potential heir contested the validity of the conformed copy. Nonetheless, the Surrogate denied probate and the Appellate Division affirmed.
New York SPCA § 1407 and Third Department case law provide that “A lost or destroyed will may be admitted to probate only if [1] It is established that the will has not been revoked, and [2] Execution of the will is proved in the manner required for the probate of an existing will, and [3] All of the provisions of the will are clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of the will proved to be true and complete.” The Surrogate found that petitioner had established the first two elements, but had fallen short on the third. The Appellate Division agreed that “petitioner failed to show that the conformed copy of decedent’s will was ‘true and complete,’” stating that “[a]lthough petitioner tendered a conformed copy of decedent’s will, there was no other proof from the hearing confirming that the conformed copy was identical to decedent’s original will.”
Takeaway: Slezak reinforces the importance of being sure that the original version of a will is available. While there appears to have been no contest to the validity of the conformed copy of the will, the courts followed the statute strictly and denied probate when one of the statutory elements for admitting the conformed copy was lacking.
Disclaimer: This alert should not be construed as legal advice or legal opinion on any specific facts of circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer concerning your situation and any specific legal questions you may have.
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