Wills – Probate – “Fraudulent” Destruction Notwithstanding Testator’s Knowledge

Decedent executed a will in which he exercised a general testamentary power of appointment making plaintiff beneficiary of a trust. The will was delivered for safekeeping to a notary in Germany and subsequently destroyed in a bombing raid. Decedent, having learned of the destruction of his will, died ten months later without executing a new will in the interim. The Surrogate admitted the will for probate as one “fraudulently destroyed” under New York law. The Appellate Division reversed. On appeal to the New York Court of Appeals, held, reversed, three judges dissenting. The will was “fraudulently destroyed” within the meaning of the statute even though decedent knew of its destruction and failed to execute another testamentary instrument. In re Fox, 9 N.Y.2d 400, 174 N.E.2d 499, 214 N.Y.S.2d 405 (1961).