Before his death, Arthur Zito was the subject of a contested guardianship litigation, in which his sons Arthur Jr. and David had sought to become Mr. Zito’s guardian. (A third son, Stephen, was not a party to this litigation.) After the court appointed Mr. Zito’s daughter Laura as guardian, Arthur Jr. and David moved to reopen the record. When the brothers’ motion for reconsideration of the guardianship judgment was denied, they appealed that decision and the guardianship action was stayed pending the appeal. At the time of Mr. Zito’s death, that guardianship judgment was still stayed.

Following his death, Laura filed a caveat to block probate of any purported Last Will and Testament. Her brothers Arthur Jr. and David sought to dismiss the caveat and admit a copy of Mr. Zito’s December1998 will to probate.

Mr. Zito had executed a will in February 1988, naming Arthur Jr. and David as executors. He then executed a new will in December 1998, again naming Arthur Jr. and David as executors. In a December 1998 letter to Arthur Jr., Mr. Zito told Arthur Jr. that he had named him and David as co-executors of his estate.

Arthur Jr. and David sought to admit a copy of the December 1998 will to probate, claiming that they could not locate the original will but that the December 1998 letter constituted a holographic codicil.

Their sister Laura disputed this claim, asserting that their father had died intestate because the original will could not be located and, therefore, revocation was presumed. Laura also claimed that she should be appointed administrator of the estate, because she had been named as guardian and because her brothers had unlawfully transferred their father’s assets. The brothers, in turn, claimed that Laura had destroyed the original will.

Following a hearing without testimony, the trial court admitted the December 1998 will to probate. Laura filed a motion for reconsideration. Following the reconsideration hearing, her brothers filed certifications, to which Laura objected. Thereafter, the trial judge denied Laura’s motion for reconsideration. Laura filed an appeal of the case.

On appeal, Laura argued that her brothers had failed to prove by clear and convincing evidence that the 1998 will had not been revoked. She also argued that the trial court should have permitted discovery.

On appeal, because the trial court had failed to make findings of fact or provide reasons for the entry of the probate orders, the Appellate Division vacated those orders, and remanded the case back to the trial court.

In so doing, the appellate court noted that, if a will is last seen in the possession of the decedent, and it cannot be found upon the decedent’s death, there is a presumption that the decedent destroyed the will with the intent to revoke it. Although the presumption is rebuttable, it is the burden of the proponent of the will to provide clear and convincing evidence “sufficient to exclude every possibility of a destruction of the will.”

In this case, the appellate court noted that the presumption of destruction and revocation applied. Nevertheless, the trial court had failed to make findings that the plaintiffs had adequately rebutted that presumption. Although the trial judge had been familiar with the parties as a result of the animosity surrounding the guardianship litigation, the appellate court could not determine whether the trial judge had relied on that prior knowledge in making the decision regarding the will contest. “While the presumption should be against intestacy, … the record lacks findings upon which this court can rely to support the determination to probate the 1998 will….”

A copy of In re Zito can be found here – In the Matter of the Estate of Arthur J. Zito, Sr., Deceased

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