You Be the Judge – wills

You Be the Judge – wills – Brief Article

Bruce M. Jones

Maggie was always losing things, so when it came to making her will, she had it prepared in duplicate. She signed both copies, had them duly witnessed, and put them away. A few years later she handed one of the copies to a friend, remarking, “This is my will. I want you to keep it for me.”

When she died two years later, a careful search failed to turn up her copy of the will, so the one held by her friend was offered for probate in court. The relatives whom Maggie had left out of her will promptly objected.

“Since the copy which Maggie retained can’t be found,” they argued, “she must have destroyed it, which obviously means that she meant to revoke it. That being the case, she died without a will, and we are entitled to share in her estate.”

“Not so,” countered the relatives named in the will. “You know how Maggie was about losing things. Her copy is probably just lost. It was to take care of just such a situation that she gave the extra copy to her friend.”

If you were the judge, would you recognize the extra copy of the will?

The court refused to recognize the extra copy. It said that where duplicate wills are made and the copy retained by the maker cannot be found, it must be presumed that the maker destroyed it with the intent of revoking it. As there was no evidence indicating any other explanation in Maggie’s case, the court concluded that she had revoked her will.

Based upon an 1943 decision of the Surrogate’s Court, Kings County, New York

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