Having examined countless witnesses in probate and other contested Surrogate’s Court proceedings, many of us have grown accustomed to learning that critical documents were destroyed by a “flood.” That flood, almost invariably, occurred “in the basement.” The flood narrative is met with the usual inquiry into the cause of the flood, the property destroyed in the flood, the insurance claim made in the wake of the flood, the whereabouts of the paperwork associated with the insurance claim resulting from the flood, etc. Extracting electronic data as part of the e-discovery process has minimized the loss of potentially probative documents as a result of the basement flood. An article in the latest New York State Bar Journal by David Paul Horowitz discusses how electronic disclosure issues featured prominently in a recent Erie County probate proceeding.
E-discovery issues aside, a recent case decided by the Richmond County Surrogate revisits the law pertaining to probating lost or damaged wills. In Matter of Larsen, N.Y.L.J., Aug. 5, 2016, p.32 (Sur. Ct., Richmond Co.), the decedent’s will, apparently damaged in a flooded basement to the extent that the signatures thereon were washed clean, was admitted to probate. While there is nothing extraordinary about the case, it illustrates the approach and analysis employed by the courts when addressing whether a lost or destroyed will ought to be admitted to probate.
The decedent took receipt of his original will from his attorney, and placed it in his personal safe in the basement of his home along with other important papers. The floodwaters then enveloped his safe. According to the proponent, both he and the decedent believed that the safe was waterproof and thus, neither he, nor the decedent, checked the contents of the safe after the flood. When the decedent died, the proponent opened the safe to retrieve the will and discovered the water damaged will affixed with rusty staples. The signature pages contained indentations of pen markings where the signatures apparently once appeared but had been washed clean.
The proponent offered a conformed copy of the decedent’s will, which was in the possession of the attorney draftsperson, together with the original water damaged document for probate. The attesting witnesses provided affidavits as to due execution with the probate petition.
The Court examined SCPA 1407, which provides 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.
Under the circumstances presented, the court found that the decedent never intended to revoke his will. According to the court, the decedent’s act of placing the will in his waterproof safe and never checking on the condition of the contents of the safe even after the flood, pointed to the decedent’s continued desire in maintaining his testamentary plan as set forth in the will. The court was satisfied by the conformed copy and the affidavits of the attesting witness that the will was duly executed. The court was further satisfied that the fact that decedent’s will was found in his safe with all of his other important documents clearly established that he did not intend to revoke his will, but rather that the original will was damaged with the decedent’s other personal possessions. The will was admitted to probate.
Keep in mind here that the proponent in Larsen was the decedent’s sole distributee, and the proceeding appears to have been uncontested. The decision does not mention the decedent’s testamentary plan as set forth in the damaged will, and does not mention the potential existence of prior testamentary instruments benefiting persons potentially adversely affected by the propounded instrument. The Dead Man’s Statute and other potential impediments to the propounded will being admitted to probate were not factors in this case.