In re the Estate of Kalenak

Order unanimously reversed on the law without costs and petition granted. Memorandum: In this uncontested proceeding in Surrogate’s Court, petitioner contends that the court erred in denying her petition to admit to probate a copy of the Last Will and Testament of decedent. We agree. Petitioner’s proof sufficiently established that the original will was not in decedent’s possession before his death, but that a conformed copy remained in the possession of the attorney-draftsman or his successor. That proof satisfied SCPA 1407 (1) (see, Matter of Utegg, 91 Misc 2d 21; Matter of Haefner, 4 Misc 2d 835; cf., Matter of Gray, 143 AD2d 751, lv denied 74 NY2d 607). Further, the testimony of petitioner’s witnesses, plus the attestation clause on the conformed copy of the will, formed a sufficient basis to establish due execution (see, SCPA 1407 [2]). Petitioner’s proof also adequately established all of the provisions of the will (see, SCPA 1407 [3]). That proof included the conformed copy of the will and the attorney-draftsman’s statement that the conformed copy was identical to the original will that he had prepared for decedent. Additionally, the attorney’s former secretary testified that her handwriting was on the copy of the will and that she conformed that copy to the original. Therefore, the conformed copy of the will of decedent is admitted to probate. (Appeal from Order of Onondaga County Surrogate’s Court, Wells, S. — Probate Will.) Present — Callahan, J. P., Boomer, Pine, Lawton and Fallon, JJ.