This was originally posted on the SGR Blog.
Court Decides If Made in Hospital Holographic Will Was Valid
During the onset of the Covid-19 pandemic, Juanita Koutsakas was admitted to New York Presbyterian Queens Hospital on March 14, 2020 due to symptoms she was exhibiting from an ongoing battle with cancer. She died in the hospital eight days later on March 22, 2020 survived by her sole distributee spouse Steven.
Proffered for probate was an instrument purportedly handwritten by Juanita in the hospital on March 18, 2020 naming her niece Maria Koutsakos as sole beneficiary. The instrument was on a single piece of folded plain white paper and primarily consisted of one dispositive sentence, handwritten on the top in black ink, followed by the name of two banks, Juanita’s signature and the signature and acknowledgment of a notary public.
It read as follows:
State of New York
County of Queens
I Juanita Tedeschi Koutsakos being of sound body and mind bequest my worldly possessions to my niece Maria Parrella. Chase Bank, Ridgewood
+ Savings.
Juanita Tedeschi Koutsakos {signed}
Sworn to before me this
18 March 2020
Colleen B ***** {signed}
{Notary Public Stamp, State on New York}
{Registration Number}
The instrument disinheriting Steven bequeathed Maria an estate alleged to consist of $200,000.00.
As for the circumstances of the execution, Maria submitted an affidavit stating that on March 17, 2020 Juanita asked her to find a lawyer to draft a will bequeathing Maria the entire estate. The same day, Maria called an attorney who said it was her standard practice to meet with a testator before drafting a will and that she was not comfortable going to the hospital out of concern for exposure to coronavirus. That attorney submitted an affirmation confirming that she refused to draft the document as requested under the circumstances. Maria stated that she and a cousin tried contacting other attorneys on March 17 and 18 to draft a will for Juanita but their efforts were likewise unsuccessful.
At some point Maria was able to enlist the assistance of a notary public (Colleen) who agreed to go to the hospital on March 18 to act as a notary. Colleen’s acknowledgment appeared on the instrument. Additionally, an unattached, separate page of folded plain white paper titled “All Purpose Acknowledgment,” which was placed under the proffered document, was submitted. It stated, in substance, that Juanita appeared before notary Colleen on March 18, 2020; provided satisfactory proof of her name; and acknowledged to the notary that her signature appeared on the document.
Submitted with the petition was a purported waiver and consent by Steven and an affidavit bearing Steven’s name proving the handwriting of Juanita. A full signature of Steven’s name appeared on the affidavit proving Juanita’s handwriting which was dated September 9, 2020. However, the waiver and consent, which was dated three months later on December 8, 2020, was signed above Steven’s name with only an “X”.
Maria’s affidavit stated that Steven suffered from severe arthritis and was currently only able to sign that way. Although the signatures were inconsistent, the Court was cognizant that a signature may be made by any memorandum, mark or signature, written or printed on any instrument with intent to execute or authenticate the mark of signature. Turning to the proffered instrument: a will is considered holographic when it is written entirely in the handwriting of the testator, and is not executed and attested in accordance with the formalities prescribed by law. In New York, a holographic will is only valid if made by:
(1) A member of the armed forces of the United States while in actual military or naval service during a war, declared or undeclared, or other armed conflict in which members of the armed forces are engaged.
(2) A person who serves with or accompanies an armed force engaged in actual military or naval service during such war or other armed conflict.
(3) A mariner while at sea.
Before a holographic instrument will be admitted to probate, its execution and the handwriting of the testator must be proved. Holographic wills that are made in the handwriting of persons other than those who qualify under the law are not valid and must meet the same requirements of due execution for wills in general.
Notwithstanding the proof submitted of Juanita’s handwriting and signature, the acknowledgment by the notary and the consent of the sole distributee, the submitted instrument could not be admitted to probate as a holographic will since it was clear that Juanita was not a member of any of the classes of persons entitled to make such a will.
While acknowledging the limitations set forth in the statute, counsel for Maria submitted an affirmation with a supporting legal memorandum arguing that the Court should grant a narrow “exigent circumstances exception” to the holographic will statute.
Counsel contended that the instrument was executed in a hospital at the beginning of the Covid-19 pandemic, citing to the State disaster emergency order issued by the Governor on March 7; and another order issued on March 16, 2020 allowing hospitals to increase capacity and directing every school in the State of New York to close for a period of two weeks commencing on March 18, 2020; and a third order issued on March 20, 2020 directing all nonessential businesses to reduce in-person workforces by 100% no later than March 22, 2020 at 8pm. Counsel pointed out that Juanita was not able to have the will witnessed utilizing audio-visual technology since that option was not available until the Governor issued an order on April 7, 2020, which set forth the specific conditions to satisfy the act of witnessing such wills.
Counsel also contended that such an exception aligned with the public policy of the holographic will statute which is to allow a person in extremely perilous and urgent circumstances the limited opportunity to make a formal will.
But counsel fatally failed to grasp the difference between judicial and legislative functions. The tenuous legal arguments set forth could not possibly legitimize nor provide a proper foundation for the relief requested. What Maria sought was tantamount to a redrafting of the holographic will statute on the Court’s own initiative by the addition of a new, ill-defined subdivision of eligible persons. And it was fundamental that courts are constrained by the rules of statutory construction which required that when the language of a statute is clear and unambiguous, the words should be literally construed in accordance with their plain and obvious meaning, without resorting to an artificial or forced construction.
Counsel’s arguments evoked some degree of sympathy as they were focused on Juanita’s physical condition. But the Court pointed out the countervailing context of the situation. It was a basic fact that one need not retain an attorney to make a will. But Maria took upon herself the task of finding an attorney within a short period who would draft a will for a hospitalized patient upon terms only conveyed by Maria, which essentially provided that Maria would inherit the entirety of Juanita’s estate to the exclusion of her spouse.
To avoid the obvious pitfalls of fraud and undue influence and address important issues such as the existence of a statutory elective share, it is the custom and practice of attorneys to meet with the testator prior to drafting a will to ascertain capacity and testamentary intent and provide relevant legal advice. In fact, it would have bordered on malpractice if counsel were to draft a document which disinherits a spouse on short notice simply according to the instruction of a third party without speaking with the testator. Therefore, the failure of Maria’s quixotic search was neither surprising nor a reason for the Court to deviate from the statutory scheme established for holographic wills.
Although not endorsed by the Court as a routine course of action, Juanita, with or without Maria’s assistance, could have utilized an on-line legal service as an avenue to obtain a will that could have been properly executed with the instructions provided. And it was unclear why the distribution of the Juanita’s assets to Maria could not be achieved in another manner.
The proffered instrument did not satisfy the due execution requirement of law. And Maria did not demonstrate entitlement to relief from those requirements The instrument was denied probate and the petition was dismissed.