Numerous Defects in Execution of Propounded Will:

This was originally published on the SGR Blog.

Would Court Grant Unopposed Petition to Probate?

Many of us have either signed or witnessed the signing of a will—and are familiar with some of the concomitant practices and procedures.  But the Estates Powers and Trust Law details the four requirements for the due execution and attestation of a will. What is a Surrogate to do if no one objects to the probate of a will even if that statutorily essential quartet is not meticulously satisfied?

In an uncontested proceeding for the probate of an instrument alleged to have been signed by Domenica L. Russo, the Court held a hearing to determine whether the execution of the proffered instrument met the formal requirements of EPTL 3-2.1.

The decedent died at the age of 94 on June 27, 2019, a resident of Nassau County. Her husband predeceased her and she was survived by three children: Anthony D. Russo; Daniel E. Russo; and Barbara Ann Russo, all of whom were the co-petitioners and nominated co-executors named in the instrument. The Court file contained affidavits of attesting witnesses after death and supplemental affidavits made by the witnesses as well. And included in the court file was an affirmation by the attorney who drafted the instrument presented to the court.

There were multiple irregularities in the execution of the instrument. The instrument was not dated. The witnesses, who executed the affidavits after death did not sign the instrument on the same page where the decedent’s signature appeared. The affidavit of attesting witnesses annexed to the instrument was also not dated, although signed by the two witnesses. The affidavit of attesting witnesses left blank the state and the county.

Counsel for the petitioners affirmed that he drafted the instrument, however, the execution was supervised by a friend of the family, Theodore Pollock, Esq., whose name appeared hand written on the affidavit of attesting witnesses. Although it appeared that Pollock notarized the affidavit of attesting witnesses, the notary stamp did not reveal the year that his commission expired.  Pollock’s jurat on the self-proving affidavit indicated the affidavit of attesting witness was executed on April 4, 2014. However, counsel for the petitioners set forth in an affirmation that Pollock at the age of 80 years old, died in 2012 and, therefore, the date could not have been April 4, 2014. The petitioners’ attorney further sets forth that he believed, upon information and belief, that the instrument was signed on April 4, 2011, because that was the date that the decedent executed an instrument dividing a trust.

Testimony at the hearing was given by Micheline Lumkwitz, one of two witnesses to the will execution.  Lumkwitz testified that she signed the will offered for probate as a witness to the execution, and although she remembered that the will ceremony was conducted in the springtime, she could not remember the exact date. She further testified that her signing of the will occurred in the presence of the decedent, Pauline Clarke, who was also a witness, Pollock and Anthony D. Russo.  Lumkwitz testified that she saw the decedent sign the will, and that all of the other persons mentioned above were present when the decedent signed the will in the kitchen of her cottage, which was located at the back of the home of her son, Anthony D. Russo. The witness also testified that she knew the instrument was the decedent’s will because Pollock stated so, and he asked her to sign the will as a witness.  She also saw Pauline Clarke sign the will, as she was sitting next to Lumkwitz at a table when Clarke signed. In response to questioning, Lumkwitz stated that the decedent was over 18, of sound mind, able to speak English, and that she signed one copy of the will.  Lumkwitz knew the decedent because she took care of her grandchildren and worked for her son, so that they would see each other at least once a week.

Pauline Clarke, who worked as an aide caring for the decedent, was the second witness, and she provided additional testimony. She identified her signature on the document, although she could not remember the date it was signed. She also testified that the decedent signed the will in her presence and in the presence of Lumkwitz, Pollock and Anthony D. Russo. According to Clarke’s testimony, she and Lumkwitz were seated, along with the decedent.  Clarke testified that she saw the decedent sign the will and she saw Lumkwitz sign the will, all in the same room. She knew it was a will because Pollock told her so, and the decedent read the will. According to Clarke, the decedent asked her to act as a witness while the lawyer provided additional information. The witness testified that the decedent was over the age of 18, in her right mind, and she was not blind, deaf or unable to write.

EPTL § 3-2.1 provides the formal requirements for the execution and attestation of wills and reads in relevant part as follows:

(1) It shall be signed at the end thereof by the testator or, in the name of the testator, by another person in his presence and at this direction, subject to the following…. (2) The signature of the testator shall be affixed to the will in the presence of each of the attesting witnesses, or shall be acknowledged by the testator to each of them to have been affixed by him or by his direction. The testator may either sign in the presence of, or acknowledge his signature to each attesting witness separately.(3) The testator shall, at some time during the ceremony or ceremonies of execution and attestation, declare to each of the attesting witnesses that the instrument to which his signature has been affixed is his will.(4) There shall be at least two attesting witnesses, who shall, within one thirty day period, both attest the testator’s signature, as affixed or acknowledged in their presence, and at the request of the testator, sign their names and affix their residence addresses at the end of the will. There shall be a rebuttable presumption that the thirty-day requirement of the preceding sentence has been fulfilled. The failure of a witness to affix his address shall not affect the validity of the will.

The proponent of a will has the burden to satisfy the court that a will filed for probate was valid and duly executed. Before admitting a will to probate, the Surrogate must be satisfied that the execution of the will was valid, even if no interested party files an objection to its validity. And the burden of demonstrating that the purported will was duly executed lies squarely with the proponent, who must prove such by a preponderance of the evidence. Where the attorney-draftsperson supervises the execution of a will, a presumption of regularity arises that the will was properly executed in all respects.

Although typically the will execution is supervised by the attorney/drafter, the presumption of due execution may attach even where the supervising attorney did not draft the will. And a self-executing affidavit of the attesting witnesses creates a presumption that the will was duly executed.

The clear testimony offered at the hearing by both witnesses was that the testator, Domenica L. Russo, signed the instrument in their presence and declared the instrument to which her signature had been affixed to be her will and that the execution was supervised by an attorney, Theodore Pollock. The testimony indicated that there was compliance with EPTL3-2.1 (1), (2) and (3).

The remaining issue for this Court was whether the execution was in compliance with EPTL3-2.1 (4), despite the fact that the attesting witnesses failed to sign the will in the space provided following the attestation clause. Instead, the witnesses signed an undated “Affidavit of Attesting Witnesses” which had an incorrect notarization date.

The Court noted that, in addition to the testimony provided at the hearing, each witness signed an affidavit of attesting witness and a supplemental affidavit of subscribing witness as part of the documents supporting the petition to admit the will to probate. Each witness described the will ceremony, including the fact that each witness signed her name immediately after seeing the decedent sign the will under the supervision of an attorney.

Where the witnesses’ signatures do not follow the attestation clause but are instead located on the self-proving affidavit attached to the will, the presence of those signatures meets the requirements of EPTL 3-2.1 for due execution.

There is no requirement under EPTL 3-2.1 that a will must be dated to be duly executed.

While there is a requirement that the witnesses sign their names within 30 days of each other, EPTL 3-2.1(A)(4) provides a rebuttable presumption that this requirement has been fulfilled. In addition to this presumption, the Court had the sworn testimony and multiple affidavits of the two witnesses attesting to the fact that each witness signed as requested by the decedent immediately after she executed her will and on the line shown to them by the supervising attorney.

Based upon all of the documentary evidence and the witness testimony, and there being no opposition, the Court found that there was sufficient proof of compliance with all of the requirements of EPTL 3-2.1. The petition to probate the will was granted.

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