Discovering the Undiscovered

January 07, 2019

When a will has gone missing, or assets cannot be found, the issue usually becomes the subject of a Surrogate’s Court proceeding. The past several months have seen decisions addressed to such issues, each of which are instructive to the practitioner.

Presumption of Revocation Rebutted. Before the Surrogate’s Court, New York County (Anderson, S.), in In re Kalt, N.Y.L.J., May 1, 2018, at p. 18, was an uncontested proceeding
pursuant to SCPA 1407 for probate of a photocopy of the purported will of the decedent. The proponent, who was the decedent’s son, was the nominated executor under the instrument, and he and his brother were the sole beneficiaries of the decedent’s estate.

The record revealed that the decedent died with an estate valued at approximately $12 million to $16 million. According to an affirmation filed by the lawyer who supervised the execution of the will, the decedent had told her that he had arranged with the proponent to pick up the instrument from her office, and arrange for its safekeeping. The proponent confirmed that he retrieved the instrument from counsel’s office several days later, and placed it in a safe deposit box owned by him and the decedent at a savings bank. However, thereafter it appeared that a burglary took place at the bank where the will was maintained, which involved a breach of the safe deposit boxes at the site. Following the burglary, the will could not be found.

Ilene Sherwyn Cooper is a partner with Farrell Fritz, P.C. in Uniondale, where she concentrates in the area of trusts and estates. She is the past-chair of the New York State Bar Association’s Trusts and Estates Law Section.

Reprinted with permission from New York Law Journal, Monday, December 10, 2018, Vol 260 – No. 111

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  • Related Practice Areas: Estate Litigation, Trusts & Estates
  • Featured Attorneys: Ilene S. Cooper
  • Publications: New York Law Journal