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Surrogate's Court, New York County, New York.

IN RE: the ESTATE OF Paul K.P. HUANG, Deceased.

Decided: December 29, 2005

McGarry & Simon, New York City (James McGarry of counsel), for petitioner. Eliot Spitzer, Attorney General (Howard Holt of counsel), for ultimate charitable beneficiaries. Eugene Tsui, respondent pro se.

 Paul K.P. Huang died August 19, 2004, leaving an instrument dated October 7, 1998 which is being offered for probate.   Petitioner, in his second amended petition, asks the Court to deny probate to seven other writings, each of which is later in date than the proffered instrument.   The first six, being unattested, are inadmissible to probate (see EPTL 3-2.1).   The seventh, dated April 29, 2004, is a photocopy of an instrument which was executed under the supervision of an attorney;  its due execution, therefore, is presumed (Matter of Rosen, 291 A.D.2d 562, 737 N.Y.S.2d 656).   Moreover, the attached affidavit of attesting witnesses satisfies the requirements of SCPA 1406(1).   The original, however, cannot be located.   The supervising attorney avers that after the execution of the document which he believes decedent drafted himself in decedent's home, decedent retained possession of the original.   The strong presumption, therefore, is decedent revoked the will by destruction (Matter of Fox, 9 N.Y.2d 400, 407, 214 N.Y.S.2d 405, 174 N.E.2d 499).   Accordingly, the photocopy of the April 29, 2004 instrument is inadmissible (Matter of Passuello, 169 A.D.2d 1007, 565 N.Y.S.2d 281).

EPTL 3-4.6(a) provides:

If after executing a will a testator executes a later will which revokes or alters the prior one, a revocation of the later will does not, of itself, revive the prior will or any provision thereof.

 Decedent's clear intent to revoke all prior wills by means of the April 29, 2004 instrument is both explicit:  “I, Paul K.P. Huang, being of sound mind, publish and declare this to be my last Will and Testament, revoking all former wills,” and implicit:  the complete disposition of decedent's estate (see Matter of Lautz, 55 Misc.2d 412, 413, 285 N.Y.S.2d 916).   There is no evidence the October 7, 1998 instrument, or any other prior instrument, was revived (see EPTL 3-4.6[b] );  accordingly, decedent died intestate (see Matter of Mangan, N.Y.L.J., Oct. 28, 1994, at 34, col. 2).

Probate of the proffered instrument is denied;  preliminary letters testamentary heretofore issued to petitioner are revoked.   This decision constitutes the order of the Court.