Too much of a Good Thing –

Duplicate Original Wills: the Danger Zone

Our New York Court of Appeals (the State’s highest Court) recently ruled on an appeal by the children of the Decedent sending the matter back to the Surrogate’s Court for a determination if a 1996 pre-divorce Will can transfer the family home, that had been in the family “for generations”, out of the blood line to the father of the ex-husband. (In the Matter of the ESTATE OF Robyn R. LEWIS, Deceased, June 4, 2015.)

First, the effect of the divorce –

It is the law in New York, and Texas, that a divorce revokes any provision in a Will relating to the ex-spouse.  Thus the 2007 divorce meant that Decedent’s ex could neither inherit under the 1996 Texas Will nor be named executor. Because the ex had no standing, the Will was submitted for probate by his father, who was named as alternate executor and residuary legatee.  If the 1996 Will is admitted, the ex’s father gets the house! The children felt strongly that was not what their mother intended and appealed the revocation of Letters of Administration issued to them (Mom had no other Will) and the admission of the 1996 Will to Probate.

Next, too smart by half?

The ex testified that in 1996 he and his then wife prepared “mirror” or reciprocal wills and related health care proxies and powers of attorney with a Texas attorney; not unusual. So far, so good.

However, the ex then testified that four copies of each were prepared with the intention that a complete set of documents would be held safely in each of Texas, New York, a safe deposit box and his parents’ home. Ah, there’s the rub. The ex produced only one original Will – and after a hearing – the Surrogate admitted it to probate, putting the ex, through his father, in the cat bird seat. The children appealed and the Appellate Division (the intermediate appeals court) agreed with the Surrogate and affirmed his decision. The children appealed to the Court of Appeals.

Finally, the duplicate Wills

The Court of Appeals reviewed the testimony of the witnesses before the Surrogate, especially that of the ex, and sent the matter back to the Surrogate for a crucial determination: was the copy of the 1996 will held at decedent’s home a) an original duly executed copy and b) if so, was it revoked by the decedent? (No copy of the 1996 will was found at the decedent’s home despite “a diligent search”.)

As to the first issue, the Surrogate did not explicitly find that the duplicate Will held by the decedent was an Original. Preparation of duplicate original Wills is fraught with peril: all must be produced or it is “strongly presumed” that a missing duplicate original held by the decedent was revoked by destruction, thus revoking the Will(s) in toto. If, on rehearing, the Surrogate were to find that the copies were not originals, then the original 1996 Will would be admitted to Probate. It will be interesting to see how the ex (and perhaps the attorney draftsman) testify in this issue.

Assuming the duplicates were originals, the matter was remitted to the Surrogate to give the ex and his father “a fair opportunity” to provide sufficient evidence to overcome the strong presumption of revocation by destruction. Stay tuned.

The takeaway.

Too much of a good thing can be, and in this context, is, a bad thing.  While it is prudent to execute duplicate original copies of the “Living Documents”: Powers of Attorney, Health Care Proxies and Living Wills, execution of duplicate original Wills can cause mischief, unintended consequences and extensive and expensive litigation as in The Estate of Lewis.

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