Matter of Keane
Annotate this CaseDecided on November 27, 2019
Surrogate's Court, Kings County
In the Matter of the Probate Proceeding, Will of Jeremiah A. Keane, Deceased.
2018-1747
Appearing Counsel are:
Attorney for Executor:
Leonid Mikityanskiy, Esq.
1517 Voorhies Ave.
Brooklyn, NY 11235
Also appeared for Kings County P.A.:
Fabiana Furgal, Esq.
Cullen & Dykman, LLP
44 Wall St.
New York, NY 10005
Margarita Lopez Torres, J.
In this uncontested probate proceeding pursuant to SCPA 1407, Nancy Graham (the petitioner) offers for probate a photocopy of a written instrument dated February 20, 1993 (the propounded instrument), which purports to be the last will and testament of Jeremiah A. Keane (the decedent). The decedent died on January 30, 2018, widowed and without issue. The petitioner is the nominated executor and sole beneficiary under the propounded instrument. Jurisdiction has been obtained over all necessary parties, and no objections have been filed. Affidavits in support of the instant petition are submitted by the petitioner, counsel for the petitioner, counsel for the Kings County Public Administrator (P.A.), and by one of the two attesting witnesses, Carson Chinn.
A copy of a lost or destroyed will may be admitted to probate only upon (1) establishing that the will has not been revoked, (2) proving execution in the manner required for probate of an existing will, and (3) clearly and distinctly proving all of the provisions of the will by each of at least two credible witnesses or by a copy or draft of the will proved to be true and complete. SCPA 1407. A presumption of revocation applies where an executed will cannot be located after a testator's death, if such will was in the testator's possession. Matter of Demetriou, 48 AD3d 463, 464 (2d Dep't 2008). Sufficient proof for admission of the lost or destroyed will may be established by evidence showing that the attorney-drafter retained possession of the original will, affidavits from the witnesses to the circumstances of the execution of the will, and the proffer of an exact photocopy of the original will. Estate of Castiglione, 40 AD3d 1227, 1229 (3d Dep't 2007), lv denied 9 NY3d 806 (2007).
The petitioner asserts that the decedent married her mother in 1981 and that her mother died in 1991. Accordingly, the decedent was the petitioner's stepfather whom she had known for [*2]almost 40 years. The petitioner further asserts that the decedent's parents and grandparents predeceased him, and his siblings also predeceased him and left no children.
The petitioner states that after the decedent executed the propounded instrument, he showed the petitioner a photocopy of the instrument and where he kept the copy. After decedent's death, the petitioner located the photocopy of the propounded instrument in the top drawer of the decedent's dresser. The decedent also left a folder on his kitchen table with a note that states, "For Nancy after Jerry Keane is gone," with "gone" crossed out and "just in case" written to the right of it. Inside the folder was a handwritten note dated July 30, 2017 detailing the decedent's funeral instructions and burial arrangements. The note also states, "look in top drawer of dresser."
The photocopy of the propounded instrument bequeaths the residuary estate "to my beloved daughter, Nancy Graham" and if the petitioner does not survive the decedent, then to the petitioner's children. The propounded instrument further states, "I make no provision for my son, Douglas Keane, not because of any lack of affection for my said son, but believing that his welfare will be best served by the disposition herein made of my Estate." The propounded instrument was apparently signed by the decedent and two witnesses, Fred I. Chinn and Carson Chinn. Attached to the propounded instrument is a self-proving affidavit signed by both witnesses that states, in sum and substance, that the decedent declared the instrument to be his last will and testament; that the decedent signed the instrument before the witnesses; that the decedent was of sound mind, memory and understanding and under no constraint or undue influence at the time of signing; and that attorney Barry N. Heetner supervised the execution ceremony.
Counsel for the P.A. submits an affirmation indicating that she conducted a thorough investigation into the facts relevant to this proceeding. Counsel states that the attorney-draftsman Mr. Heetner died in March 2018, and that she spoke with Mr. Heetner's widow who stated that Mr. Heetner had been retired from the practice of law since the 1990's. Ms. Heetner further stated that Mr. Heetner's legal files were "long gone" and that she had no knowledge of their whereabouts.
Counsel also interviewed the petitioner, who stated that while the propounded instrument refers to the petitioner and her brother Douglas as decedent's daughter and son, the decedent never adopted them. Further, while the propounded instrument refers to Douglas as "Douglas Keane," Douglas never took the decedent's surname and in fact, his name is Douglas Travis.
Counsel for the P.A. also interviewed witness Carson Chinn, who stated that he agreed to witness the execution of the propounded instrument at the behest of an attorney who had an office on the same block as Mr. Chinn's restaurant. Mr. Chinn recalled the decedent to be an elderly, white male who "spoke normally and appeared to be in fine physical condition." Mr. Chinn further stated that he witnessed the man sign the propounded instrument and that he and Fred Chinn both signed the instrument. Counsel further affirms that she made efforts to interview Fred Chinn. However, he steadfastly refused to make himself available, which Carson Chinn attributed to his advanced age.
Counsel also spoke with Douglas Travis, who informed that the petitioner is his sister and that he was the decedent's stepson. Mr. Travis further stated that the decedent, his sister and he had been close as a family, which likely was the reason that the decedent referred to him and his sister as son and daughter, as well as why the decedent referred to him as "Douglas Keane." Mr. Travis also stated that he was aware that the propounded instrument bequeaths the entire [*3]estate to his sister and understood the decedent's intentions as his sister is the "older, responsible one."
In light of all the circumstances, counsel for the Public Administrator concludes that there is sufficient evidence that the lost original propounded instrument was never revoked by the decedent; that it was duly executed by the decedent; that the decedent possessed the requisite testamentary capacity at the time of execution; and that the photocopy of the propounded instrument is a true copy of the lost original.
The court concurs. No presumption of revocation arises herein since sufficient evidence has been presented that the original of the propounded instrument was never in the possession of the decedent, and that he maintained a photocopy which he kept in the same place until the time of his death. In fact, the decedent referred to the location of the photocopy within the instructions he left in the event of his death. The Public Administrator's investigation establishes that the original of the propounded instrument was inadvertently lost, destroyed, or cannot be located, and that the propounded instrument is identical to the original thereof.
Based upon the uncontested proof submitted, the court is satisfied that the propounded instrument has not been revoked, the provisions of the original will have been proven by the propounded instrument, and the original will was duly executed. Further, the court is satisfied that at the time of execution, the decedent was competent to make a will and was free of restraint or undue influence. SCPA 1406; 1408; EPTL 3-2.1; Matter of Derrick, 88 AD3d 877, 878-879 (2d Dep't 2011).
Accordingly, the propounded instrument is admitted to probate as the decedent's last will and testament. Letters testamentary shall issue to Nancy Graham upon duly qualifying according to law.
Submit decree, which shall include the entire body of the propounded instrument therein.
Dated: November, 2019
Brooklyn, New York
_________________________________
HON. MARGARITA LÓPEZ TORRES
Surrogate
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