New York Probate and Estate Administration Lawyer Blog

Petitioner (executor) offers for probate a holographic instrument, 2–1/4 3–3/4 inches in size, written upon both sides thereof. The decedent’s signature appears directly below the dispositive provisions with no space for any other signatures below it. The first witness’s signature is on the right-hand side of the paper parallel to the edge thereof approximately at a right angle to the decedent’s signature and followed by the word ‘witness’; the other witness’s signature appears immediately thereafter at a right angle to the first witness’s signature on the side of the paper opposite decedent’s signature. This witness’s signature is inverted in relation to decedent’s signature and preceded by the word ‘witness.’ The question is whether the witnesses signed ‘at the end’ of the propounded instrument in accordance with the requirements of section 21(4) of the Decedent Estate Law.

Section 21 of the Decedent Estate Law was designed to prevent fraud and its beneficial purpose should not be thwarted by an unduly strict interpretation of its provisions, especially where there is no opportunity for a fraud to have been perpetrated. Form should not be raised above substance, in order to destroy a will, and the substantial thing in this case is a paper, which reads straightforward and without interruption from the beginning to the end, and when thus read the signature is found at the end.

The court is satisfied that by the propounded paper, which is informally drawn, the decedent intended that it be his last will and testament. He was familiar with the basic requirements for the execution of a will and aware that his signature had to be witnessed. There not being sufficient space below or to the sides of decedent’s signature on the small piece of paper, the witnesses, of necessity, were forced to affix their signatures in the only spaces available on the paper. Under the circumstances indicated in this proceeding, a rigid construction of section 21 is not resorted to since there was no possibility of fraudulent additions to the instrument. The law affords the right of testamentary disposition, and a decedent’s wishes where clearly stated should not be thwarted unless clearly required. The court is further satisfied that the witnesses to this instrument signed in the only spaces available with intent to witness decedent’s last will and testament in substantial compliance with section 21 of the Decedent Estate Law.

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This is a proceeding for the probate of the will of the deceased. From a decree of the Appellate Division, affirming a decree of the Surrogate’s Court admitting the will and a codicil thereto to probate and construing the provisions thereof, and others appeal. Judgment modified.

The Appellate Division has affirmed a decree (121 N. Y. Supp. 100) of the surrogate of Kings County, which admitted to probate the will of the deceased, and which construed certain of its provisions. It consisted of two instruments, a will and a codicil, both of which were wholly written by the testator and were executed a few years before his death. The testator died April 9, 1909, unmarried and leaving no descendants. The will was executed in 1899. By its first and second articles the testator gave to his nieces respectively, legacies of $75,000 and $50,000. He directed that the two legacies should be held in trust, and that ‘the income shall be paid only to said legatees respectively and an amount of ten thousand dollars ($10,000) of the principal may be paid to each of them if they so elect when they attain the age of 30 years, to purchase and furnish a home.

The remainder of their respective legacies shall remain in trust and in case of the death of either of them without issue, before the death of their Aunt, legatee under Art. IV herein, then the share of such decedent shall in such event revert to her the said aunt. And in case either said nieces should die without issue subsequently to the death of their Aunt the said and prior to the death of their grandmother then in such case their respective shares shall in like manner revert to their grandmother.’ Article 3 gave to his brother, a plantation in Louisiana. By article 4 the testator gave to his sister, known in the family as a legacy of $125,000, to be held in trust ‘and the income thereof to be paid to herself only, with this proviso however that she may if she wish draw not exceeding Ten Thousand dollars ($10,000) with which to purchase and furnish a home for herself. In case of her death without issue and prior to that of her mother, all her interest herein shall revert to her mother.’ He also gave to her all his ‘interest in and to the estate’ of his mother. By article 6 the testator appoints his mother his ‘residuary legatee, the amount to be placed in trust as herein provided in Art. VIII, for her sole benefit, and the income come thereof to be paid to her. At her death, the principal and any accumulated income there may be shall be divided pro rata between the legatees named in articles I, II, and IV herein respectively upon the basis of their respective legacies herein and to be subject to the same trust restrictions stated herein appertaining to their several legacies hereunder.’ By article 8 the testator appointed the Union Trust Company of the city of New York as the trustee for the trusts in his will and as the executor thereof. A year later the testator executed the codicil. By that instrument he, first revoked the legacies given in article 4 of the will to his sister and substituted in place thereof the sum of ‘$25,000, SUBJECT TO ALL THE CONDITIONS And terms as expressed in said art. iv, with this exception to wit: that the sum of $2,500, instead of ten thousand dollars, be allowed her out of said amount for purchase of a home for herself if she so elects.’ Next he bequeathed to his sister, the sum of $35,000 and to his brother, the sum of $10,000, and then provided as follow: ‘And I hereby make these two legatees, upon the death of my mother, pro rata residuary legatees under the terms and conditions as set forth in Art. VI herein, as additional residuary legatees. The above legacy to his brother is in addition to the one in his favor under Art. III herein.’

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In this contested probate proceeding, objectant pro se, moves for an order granting her a trial by jury. The proceeding was commenced by petitioner on December 15, 2005. The objectant filed objections to probate on August 3, 2006.The decedent died testate on October 24, 2005. Petitioner is decedent’s sister; she is a distributee, as well as the nominated executor and residuary beneficiary under the propounded instrument dated May 11, 1974. The objectant is a distributee; she is a daughter of one of the decedent’s pre-deceased brothers. She does not receive anything under the propounded instrument.

The objectant asserts that she verbally requested a jury trial at conferences before two different court attorney-referees and was “told that the conference would be first.” She contends that she was not informed that a jury demand had to be in writing, although she also states her belief that she “signed for this.” Had Katherine advised the court that she wanted a jury trial, she would have been advised to file a jury demand.

In her moving papers, the objectant again asserts that one of the court attorney-referees is “in harmony” with petitioner’s attorney. This assertion was the subject of a prior decision (dec no. 666, October 30, 2007) of the court, which denied the objectant’s motion for disqualification of the court attorney-referee because the objectant did not assert any of the statutory disqualifications set forth in section 14 of the Judiciary Law to support her motion (see Schreiber-Cross v. State of New York, 31 AD3d 425 [2nd Dept 2006] and Moers v. Gilbert, 175 Misc 733 [Sup Ct, New York County 1941][court referee is held to the same standards as a Judge] and because the record did not reveal any other basis on which the court might be inclined to assign a different court attorney to the case.

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This matter comes before the Court by reason of the objection of certain legatees of the decedents herein to that portion of the intermediate accounts filed by the Executor which allocates certain fire insurance proceeds in the sum of $16,813.20 for ultimate distribution to a church.

The Decedents, husband and wife, presumably died simultaneously in a fire in their home at Lyons, New York, on December 13, 1959. Decedents left reciprocal wills which were duly admitted to probate in Wayne County on January 15, 1960. On that day Letters Testamentary on the wills of the spouses, both late of the Town of Lyons, New York, were issued to the City of Detroit, Wayne County, Michigan.

The Executor of the Estate, deceased, now petitions for the Judicial Settlement of his first intermediate account in the two estates. In such petitions asks that this Court determine to whom the $16,813.20 insurance settlement, received on account of the fire loss to the real estate of the decedents at Butternut Street, Lyons, New York, should be paid.

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This is a proceeding to construe and reform the last will and testament of a decedent who died on August 31, 2006 survived by four adult children. The will was admitted to probate by decree dated March 7, 2007, and the children were appointed as the coexecutors of the estate. The court has appointed a guardian ad litem to represent the disabled daughter’s interests in this proceeding. Jurisdiction is complete. The guardian ad litem has filed his report, and the matter has been submitted for decision.

A Kings County Estate Lawyer said that the daughter has filed a document entitled “Response to Executor/Fiduciary Petition for Construction of Will” in which she terms herself “petitioner.” The guardian has submitted a report in which he informs the court that after an article 81 hearing on April 23, 2008, the judge rendered a decision wherein he concluded that the daughter has certain deficiencies and limitations and further concluded that son would be appointed as daughter’s guardian with certain limited powers, which the ward does not enumerate.

Although the New York State Department of Health (DOH) has no current claim or pecuniary interest, it was cited and appeared in this proceeding by its attorney, the Attorney General of New York. DOH consents to having the will reformed to name trustees for the ARTICLE FOURTH trust, but takes no position as to who should be named as trustees. DOH opposes Irwin’s request to reform the ARTICLE FOURTH trust into a supplemental needs trust. DOH asserts that reforming the trust to create a supplemental needs trust is not necessary or appropriate given the language the decedent used in the will to pay Susan all of the net annual income of the trust without any trustee discretion or interference about how the money is to be used. DOH points out that the will postdates the enactment in 1993 of EPTL 7-1.12, the statute that authorizes the establishment of supplemental needs trusts for individuals with severe and chronic or persistent disabilities.

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This is an uncontested proceeding to probate a copy of the last will and testament of the decedent. The will is dated March 2, 1981, the original of which cannot be located; the decedent died April 4, 1981. The petitioner is the decedent’s daughter-in-law, the surviving spouse of the decedent’s post-deceased son. At the time of her death in 1981, the decedent’s only distributees were her son and her estranged spouse. She resided in a house owned by her estranged spouse. The decedent’s only asset was a home on the same block which was then occupied by the son and his family. The propounded instrument leaves the entire estate to her son. Petitioner alleges that after the decedent’s death, the son advised her that the decedent had left the residence in which they were residing to him. She also claims that she was not aware that any steps needed to be taken regarding the property until after the son’s death in April 2005, when she attempted to place the house on the market for sale.

A waiver and consent has been filed by the executor of the estate of the decedent, decedent’s estranged spouse who post-deceased the decedent. A renunciation and waiver and consent have also been filed by the son of petitioner and decedent’s son.

Pursuant to SCPA 1407, a lost or destroyed will or codicil may be admitted to probate only upon establishing: (1) that the will has not been revoked; (2) proper execution; and (3) the provisions of the missing will. It appears that the execution of the original instrument was supervised by an attorney permitting the inference that the statutory requirements were met (Matter of Spinello, 291 AD2d 406 [2002]), thus satisfying the requirement of proof of due execution. The court is further satisfied that the original instrument’s provisions have been established by a photocopy which is a true and complete copy of the original instrument as executed (SCPA 1407[3]).

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