Carbon copy of a will submitted for probate – Levinsohn’s Estate, In re, 160 N.Y.S.2d 479 (N.Y. Surr. Ct., 1957)

In this case the Surrogate’s Court had to determine whether to probate a carbon copy of a will where the original was purported inadvertently lost or destroyed.

According to the two witnesses, the decedent, L. Levinsohn, executed a will on or about February 27, 1948. They testified that all legal requirements were met. In addition, they testified that at the time Levinsohn executed the will, the decedent was of sound mind and memory and that he was not under duress.

One of the two witnesses was an attorney and was also the person who drafted the will. He testified that immediately after the will was executed, he gave it to the decedent’s son for safekeeping. This witness also testified that he made a carbon copy of the original will which he conformed and kept in his files. The witness submitted the carbon copy for probate.

Another witness at the hearing was the decedent’s son. He testified that at all times since it was executed, he kept the original will for safekeeping at his home. However, he did move twice. He also testified that the decedent never had access to the will and never asked him for it. In other words, the son testified that the decedent was never aware that the will was missing. After the decedent died, the son searched for the will at his home and at his place of business, but could not find it, nor could he find other important papers such as his own will.

Based on the evidence submitted, the court concluded that the decedent never had possession of the will after its execution and delivery to his son for safekeeping. Furthermore, the evidence establishes that the will was either in existence at the time of his death or that it was accidentally lost or destroyed during the decedent’s lifetime and that he did not realize that it had been accidentally lost or destroyed. Based on these circumstances, the Surrogate’s Court concluded that the will was destroyed as to decedent and the legal result is the same as if the will was in existence at the time of his death. Accordingly, the conformed carbon copy of the executed will filed by the petitioner was admitted to probate as the decedent’s will.