What happens when a will is intentionally destroyed by someone other than the testator? Estate of Thomas Walshe

Brian Walshe is currently in police custody awaiting trial in the murder of his 39 year old wife Ana Walshe, depicted above, who has been missing since New Year’s Day.  When questioned about her disappearance Brian Walshe told authorities the last time he had heard from or seen his wife, she was on the way to the airport for a business trip to Washington, D.C. on January 3, 2023.  Ana Walshe was a real estate executive who frequently traveled to Washington, D.C. for work.  However, in this instance it was her employer, who reported Ana Walshe missing to authorities when she was unable to be reached, not her husband.  To make matters murkier, no trip for Ana Walshe had been confirmed making her disappearance more unusual. Nevertheless, it was probably Brian Walshe’s browser history and credit card statements which warranted his arrest in his wife’s disappearance.  A search of Brian Walshe’s browser history revealed on January 1st, 2023, he Google searched the phrase how do you dispose of a body.  Brian later visited Home Depot that same day where records show he purchased $450 worth of cleaning supplies, garbage bags, mops, a hazmat suit and bleach.

Even before his wife’s disappearance Brian Walshe was no stranger to the law.  When Brian Walshe’s estranged multi-millionaire father, neurosurgeon Dr. Thomas Walshe passed away the only thing he left his son in his will were “his best wishes and nothing more” from his estate.  Though Dr. Thomas Walshe had crafted a very elaborate estate plan consisting of a will completely disinheriting his disgraced son, Brian Walshe, soon after his death that will went missing.  It is alleged that after learning of his father’s death Brian Walshe broke into the house of his estranged father, destroyed the will and proceeded to have himself appointed Administrator of his father’s multi-million dollar estate.  When an original will is destroyed the NY estate law presumes that the document was destroyed by the decedent who changed his mind thus legally revoking its contents. As such in the absence of a valid will Brian Walshe would stand to inherit the entire Thomas Walshe Estate through intestacy, the administration process of inheritance when a will does not exist.  It should also be noted that in NY, the NY estate law provides that the destruction or unlawful concealment of a valid NY will is a class E felony and punishable by up to four (4) years in jail.

As an aside, as a NY estate lawyer with three decades of experience probating wills for New Yorkers, this is a frequent problem we run into.  Most of the time it is a disgruntled relative who is reluctant to hand the original NY will over to the NY estate lawyer for probate.  This requires a NY estate lawyer to give the resentful relative a push in the form a motion to compel them to come to court at which time the individual usually complies.

Unfortunately for Brian Walshe, his father’s best friend, Jeffrey Ornstein kept a picture of Dr. Thomas Walshe’s Last Will & Testament disinheriting Brian Walshe on his cell phone in the event the document ever went missing, which it did.  By the time Dr. Walshe’s nephew, the nominated executor of Dr. Walshe’s Will caught up to Brian Walshe, Brian had already put his father’s house into contract and was weeks away from its sale.   Now Brian’s cousin,  the nominated executor of Dr. Thomas Walshe’s Will has had Brian Walshe’s letters of Administration revoked and was in the process of forcing Brian to pay back his father’s estate any damages caused when Ana Walshe disappeared.  It appears the nominated executor successfully brought a lost will petition to probate a copy of Dr. Thomas Walshe’s Will in the absence of the original.

What is a Lost Will Proceeding under the NY Estate Law?

Under the NY Estate Law if a properly executed NY will is shown to have existed AND to have been in the testator’s possession and cannot be found after their death the will is presumed revoked.  The NY estate law will assume that in the absence of an original NY will, the testator must have changed their mind and destroyed their will.   While destroying your own NY will revokes it, as stated above, the act of destroying someone else’s NY will makes you a class E felon.  As a NY estate lawyer I can tell you the legal presumption of revocation is not absolute and may be overcome making it possible to admit a conforming copy to probate in its place upon a showing of extenuating circumstances. The legal presumption of revocation may be overcome when the NY estate lawyer establishes that the NY will was not revoked by the testator during their lifetime.  For instance, if an alleged bad actor had access to the contents of the testator’s belongings where he or she kept their NY will it may overcome the presumption of revocation and a copy of the lost will may be admitted to probate.  Likewise, if the decedent’s Last Will & Testament was seen after the decedent’s death it is obvious the decedent could not have destroyed their own will and again a copy of the document may be admitted to probate.

In the Estate of Thomas Walshe the overwhelming evidence showed a clear longstanding disdain for his son Brian Walshe who he considered an unscrupulous sociopath and a thief.  Thus there was little doubt in the court’s mind as to who destroyed Thomas Walshe’s Last Will & Testament.  A NY estate lawyer can tell you these are highly contentious estates to litigate because very often the stakes and emotions run so high.  Rarely do you get a clear cut fact pattern of an individual with a well-defined criminal history with the intent and opportunity to destroy a will as in the Walshe case.

I imagine right now his father’s estate is the least of Brian Walshe’s problems as he sits in jail unable to post his $500,000.00 bond for his wife’s murder.  While Brian Walshe may be an extraordinary case of criminal behavior with regard to his father’s estate, NY estate lawyers must always be equipped to handle many NY estate issues when they arise.  The lost will proceeding under the NY estate law is no exception.

If you suspect foul play in the administration of a loved one’s NY estate it never hurts to ask the opinion of an experienced NY estate lawyer to see what recourse to pursue.  Feel free to call the NY estate lawyers at The Law Offices of Jason W. Stern & Associates for a free consultation at (718) 261-2444. Our NY estate lawyers have more than 60 years of combined NY estate law experience drafting and probating the wills for families like yours in the counties of Queens, New York, Kings, Bronx, Richmond, Westchester, Rockland, Nassau, Orange and Dutchess.


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