In the matter of Lawrence P. Gillen, Sr., 166 A.3d 942 (Del. 2017)
This estate action originated in the Court of Chancery with the filing of a Petition to Probate Copy of Will on May 8, 2015. The decedent, Lawrence P. Gillen, Sr., passed away on March 12, 2015. His original Last Will and Testament could not be located, so the Petitioners/Appellees requested that a copy of his Will be admitted to probate. The Respondent/Appellant objected to the Petition. A hearing was held before Master Kim Ayvazian on July 27, 2016. At the conclusion of the hearing, Master Ayvazian issued an oral Draft Report.
This estate action originated in the Court of Chancery with the filing of a Petition to Probate Copy of Will on May 8, 2015. The decedent, Lawrence P. Gillen, Sr., passed away on March 12, 2015. His original Last Will and Testament could not be located, so the Petitioners/Appellees requested that a copy of his Will be admitted to probate. The Respondent/Appellant objected to the Petition. A hearing was held before Master Kim Ayvazian on July 27, 2016. At the conclusion of the hearing, Master Ayvazian issued an oral Draft Report.
There are three elements that must be met to allow a copy of
a will to be accepted for probate. First, the requesting party must prove that
a valid will was executed. Second, the terms of the will must be established.
Third, it must be shown that the will was unintentionally lost and that the
testator did not change his intent after singing the will.
Master Ayvazian issued a Draft Report from the bench that
recommended that the copy of the Last Will and Testament of Lawrence P. Gillen,
Sr. be admitted to probate. For the first requirement, she pointed to clear and
convincing evidence, testimony by all of the parties who were present when the
will was signed, to show the testator signed the will. For the second element,
there was testimony by the attorney who drafted the original will. The attorney
testified that the original will and the copy were identical. Finally, for the
third requirement, Master Ayvazian pointed to testimony from various witnesses
who had been in contact with the decedent from the time his will was originally
signed, through his passing. They testified that he never mentioned changing
his intent or his will.
Important to this case was the requirement for the will to
have been unintentionally lost. Master Ayvazian pointed out that she did not
believe the testator intended to revoke his original will. He had an ongoing relationship
with his attorney from the time of the will’s execution through his passing
which would have allowed him to change his will if he desired to.
The Supreme Court of the State of Delaware reviewed the
decision and affirmed judgment of the Court of Chancery. A copy of a Will may
be admitted to probate. If you have any questions about having a copy of a Will
admitted by the court, contact an estate planning attorney with litigation
experience.
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How to Get a Copy of a Will Admitted to Probate in Lieu of a Lost Will
In the matter of Lawrence P. Gillen, Sr., 166 A.3d 942 (Del. 2017)
This estate action originated in the Court of Chancery with the filing of a Petition to Probate Copy of Will on May 8, 2015. The decedent, Lawrence P. Gillen, Sr., passed away on March 12, 2015. His original Last Will and Testament could not be located, so the Petitioners/Appellees requested that a copy of his Will be admitted to probate. The Respondent/Appellant objected to the Petition. A hearing was held before Master Kim Ayvazian on July 27, 2016. At the conclusion of the hearing, Master Ayvazian issued an oral Draft Report.
This estate action originated in the Court of Chancery with the filing of a Petition to Probate Copy of Will on May 8, 2015. The decedent, Lawrence P. Gillen, Sr., passed away on March 12, 2015. His original Last Will and Testament could not be located, so the Petitioners/Appellees requested that a copy of his Will be admitted to probate. The Respondent/Appellant objected to the Petition. A hearing was held before Master Kim Ayvazian on July 27, 2016. At the conclusion of the hearing, Master Ayvazian issued an oral Draft Report.
There are three elements that must be met to allow a copy of
a will to be accepted for probate. First, the requesting party must prove that
a valid will was executed. Second, the terms of the will must be established.
Third, it must be shown that the will was unintentionally lost and that the
testator did not change his intent after singing the will.
Master Ayvazian issued a Draft Report from the bench that
recommended that the copy of the Last Will and Testament of Lawrence P. Gillen,
Sr. be admitted to probate. For the first requirement, she pointed to clear and
convincing evidence, testimony by all of the parties who were present when the
will was signed, to show the testator signed the will. For the second element,
there was testimony by the attorney who drafted the original will. The attorney
testified that the original will and the copy were identical. Finally, for the
third requirement, Master Ayvazian pointed to testimony from various witnesses
who had been in contact with the decedent from the time his will was originally
signed, through his passing. They testified that he never mentioned changing
his intent or his will.
Important to this case was the requirement for the will to
have been unintentionally lost. Master Ayvazian pointed out that she did not
believe the testator intended to revoke his original will. He had an ongoing relationship
with his attorney from the time of the will’s execution through his passing
which would have allowed him to change his will if he desired to.
The Supreme Court of the State of Delaware reviewed the
decision and affirmed judgment of the Court of Chancery. A copy of a Will may
be admitted to probate. If you have any questions about having a copy of a Will
admitted by the court, contact an estate planning attorney with litigation
experience.