Matter of DeLutri

[*1] Matter of DeLutri 2006 NY Slip Op 50966(U) [12 Misc 3d 1159(A)] Decided on May 23, 2006 Sur Ct, Nassau County Riordan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 23, 2006
Sur Ct, Nassau County

In the Matter of the Estate of Grace DeLutri, Deceased.



324441



James T. Murphy, Esq. (Attorney for Petitioner)

40 Woodbine Court

Floral Park, NY 11001

Patricia Canzoneri, Esq. (Guardian Ad Litem)

Canzoneri & Canzoneri, LLP

248 Scherer Boulevard

Franklin Square, NY 11010

Patricia Harold, Esq. (Guardian Ad Litem)

Donlon & Harold, P.C.

1100 Franklin Avenue

Suite 304

Garden City, NY 11530

John B. Riordan, J.

In this probate proceeding, the proponent seeks to admit to probate a copy of the decedent's December 10, 1982 Will, the original not being found after the decedent's death. Because the proponent was not able to identify the names and locations of all of the decedent's distributees, a guardian ad litem was appointed to represent the interests of missing and unknown distributees. A second guardian ad litem was appointed to represent the interests of an incapacitated legatee. Both have now filed their reports with the court, the guardian ad litem for the incapacitated legatee consenting to the Will's admission to probate and the guardian ad litem for missing and unknown distributees objecting.

It appears that the decedent and her husband executed mutual Wills on December 10, 1982. On that date they also executed an agreement which provided that neither would revoke, alter, or amend their respective Wills, either in whole or in part.

After the death of the decedent's husband, she executed a new Will on February 9, 1989 which varied slightly the bequests under the earlier Will. Evidently under the belief that the agreement not to revoke the earlier Will precluded the decedent from executing a new Will after the death of her husband, the proponent did not offer the original of the later Will for probate, instead offering the copy of the prior Will.

Before a copy of a Will can be admitted to probate, the petitioner must establish, among other things, that the Will has not been revoked. In this case, the 1982 Will was revoked by the 1989 Will both by the express terms of the Will and by operation of law (EPTL 3-4.1[a][1][A]). The 1989 Will was prepared by an attorney who supervised its execution, raising the presumption that it was duly executed (Matter of Leach, 3 AD3d 763). The fact that the Will contains an attestation clause also creates a presumption that the statutory requirements for due execution were met (Matter of Collins, 60 NY2d 466 [1983]; Matter of Clapper, 279 AD2d 730 [2001]; Matter of Posner, 160 AD2d 943 [1990]). This result would obtain even if the 1989 Will had been revoked or lost, as it is the later Will's execution and not its probate which revokes the earlier Will (Matter of Huang, 11 Misc 3d 325 [2005]; Matter of Lautz, 55 Misc 2d 412 [1967]; Matter of Shinn, 7 Misc 2d 623 [1956]).[FN1] Whether or not any beneficiaries under the 1982 Will adversely effected by the 1989 Will will have a cause of action against the decedent's estate for imposition of a constructive trust or other remedy is unknown at this time, as the papers submitted to the court do not indicate whether or not the decedent received any benefit under the agreement not to revoke her prior Will (see Matter of Cohen, 83 NY2d 148 [1994]). [*2]

Accordingly, the petition to admit the decedent's Will dated December 10, 1982 to probate is dismissed. The petitioner is directed to commence a proceeding to probate the decedent's February 9, 1989 Will as expeditiously as possible. The court fixes the fees of the guardians ad litem in the sum of $1,200.00 each.

Settle decree.

Dated: May 23, 2006________________________

John B. Riordan

Judge of the Surrogate's Court

The appearance of counsel is as follows: Footnotes

Footnote 1:Also, the decedent's execution of the agreement not to revoke her 1982 Will does not invalidate her 1989 Will (Tutunjian v Vetzigian, 299 NY 315 [1949]).