In re the Estate of DiSiena
963 N.Y.S.2d 411, 103 A.D.3d 1077 (2013)
Rule of Law:
When an original will cannot be found after the testator's death, there is a strong presumption that the testator revoked it by destruction; however, this presumption may be overcome by sufficient evidence of facts and circumstances showing the testator did not intend to revoke, including admissible declarations under the res gestae exception.
Facts:
- In 1992, 1996, and 2000, decedent executed wills that expressly disinherited her son, Mario J. DiSiena, and left the residuary of her estate to her other three children.
- In 2000, decedent also executed a revocable trust similarly benefitting her three children other than Mario.
- Decedent initially directed her attorney to store the 2000 will but requested its release in 2004.
- In 2007, decedent executed a codicil naming her petitioner son sole executor and ratifying the 2000 will; she similarly amended her revocable trust at that time.
- In 2007, decedent requested her attorney store the codicil for her.
- Decedent passed away in 2010, and despite a diligent search, her original 2000 will was not found.
- Shortly before her death, on September 27, 2010, decedent met with her attorney in the hospital, instructing him to create an irrevocable trust gifting her remaining interest in the family business to the identical beneficiaries named in her prior wills and revocable trust, and signed a power of attorney appointing her three children other than Mario as her agents.
Procedural Posture:
- Petitioner, as executor of decedent’s estate, commenced a proceeding in Surrogate’s Court of Saratoga County seeking to probate a copy of decedent’s 2000 will and the original 2007 codicil.
- Surrogate’s Court issued preliminary letters testamentary.
- Respondent Mario J. DiSiena filed an objection to probate, arguing the will was presumed revoked because the original could not be found.
- Respondent Mario J. DiSiena moved for partial summary judgment to deny probate of the copy of the will and codicil and for distribution of the estate through intestacy.
- Petitioner and Salvadora DiSiena (will proponents) cross-moved for summary judgment to admit the copy of the will and original codicil to probate.
- Surrogate’s Court granted respondent’s motion for partial summary judgment and denied probate of the will and codicil.
- The will proponents appealed this order to the Appellate Division of the Supreme Court of the State of New York, Third Judicial Department.
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Issue:
Does the proponent of a lost will present sufficient evidence to create a question of fact as to whether the testator revoked her will, thereby overcoming the presumption of revocation that arises when an original will cannot be found after the testator's death?
Opinions:
Majority - Mercure, J.P.
Yes, the will proponents presented sufficient evidence to create a question of fact regarding whether the testator revoked her will, thereby overcoming the presumption of revocation. The long-standing rule dictates that when a will previously executed cannot be found after the death of the testator, a strong presumption arises that it was revoked by destruction by the testator (Matter of Fox, Collyer v Collyer). The burden rests upon the will proponent to demonstrate, through facts and circumstances, that the testator did not destroy the will with the intent to revoke it; mere speculation or suspicion is insufficient (Matter of Fox, Matter of Staiger). Furthermore, declarations by the decedent to establish the will's continued existence are generally inadmissible unless they were made 'in connection with some act under such circumstances as to become a part of the res gestae' (Matter of Bonner, Matter of Kennedy). Here, the proponents provided evidence of decedent's consistent, long-term estate plan, including multiple wills and a codicil consistently disinheriting Mario, and her prior appeals to preserve her testamentary scheme. Her action of having her attorney store the 2007 codicil, along with a copy of the will, is inconsistent with an intent to revoke (Matter of Stein, Matter of Herbert). Crucially, her instructions to her attorney shortly before her death to create an irrevocable trust with the same beneficiaries (excluding Mario) and her signing of a power of attorney appointing her other children as agents, were actions connected to her ongoing, consistent testamentary scheme. These declarations and actions are admissible under the res gestae exception, indicating her consistent intent to disinherit Mario and suggesting the will was not revoked (Matter of Miraglia, Matter of Flynn). Therefore, sufficient questions of fact exist, making the granting of summary judgment denying probate improper.
Analysis:
This case clarifies the high evidentiary threshold required to overcome the presumption of revocation for a lost will, but also illustrates that a comprehensive pattern of consistent testamentary intent, supported by a series of related actions and admissible declarations under the res gestae exception, can create a triable issue of fact. It underscores the importance of documenting a testator's evolving but unwavering estate plan. Future cases will likely scrutinize the consistency of the testator's long-term testamentary scheme and the connection between declarations and 'some act' to determine the admissibility of evidence and the viability of challenging the presumption of revocation.
