Court Discusses Problem with Will’s Signature and Format

In this probate proceeding, the propounded instrument upon its face raises a question as to its conformity requiring that a will be signed by the testator “at the end thereof”. A New York Probate Lawyer said in the instant instrument, the testatrix’s signature appears below that of the subscribing witnesses. The problem is compounded by the manner in which the testatrix misused a printed will form.

Examination of the printed form reflects that after utilizing the areas reserved for dispositive provisions and the designation of a fiduciary, the area for the testatrix’s signature is ignored and left blank, as are the blanks in the printed attestation clause. After the blank attestation clause appears the signature of two subscribing witnesses and their respective addresses. A New York Will Lawyer said that each of these subscribing witnesses appeared before the Probate Clerk and testified that at the time of execution they were shown an instrument, the decedent stated it was her will, she signed it in their presence and thereafter, in the decedent’s presence and at her request, the witnesses affixed their signatures to the instrument.

Beneath where there appear the respective signatures of the subscribing witnesses is a printed “Affidavit of Subscribing Witness.” This affidavit is filled in with the testatrix’s name as if she were a subscribing witness to her own will. The line at the end of the affidavit is signed by the testatrix and a notarization of her signature is on the instrument.

Westchester County Probate Lawyers said that while usually, and preferably, the signatures of witnesses are beneath or next to the signature they are witnessing, there is nothing in our statutory scheme which in itself would render the witnesses’ signatures being physically above the testatrix’s signature to be fatal to probate where all of the signatures are after the dispositive provisions of the will.

Likewise, the failure to utilize the attestation clause is of no significance. While an attestation clause is advisable, it is not a statutory prerequisite to a valid will. Both the notarization of testatrix’s signature and her filling in the blanks on the “Affidavit of Subscribing Witnesses” with her own name are meaningless surplus usage.

The court is otherwise satisfied that at the time of execution, the decedent possessed testamentary capacity and was not under any restraint and that the instrument satisfies the requirements of EPTL (Estates Powers and Trusts Law). It is admitted to probate.

The manner in which this simple will form was utilized by a lay person presents ample basis for the advocates of lay preparation of any will form to pause. In the instant matter, despite the simplicity of the form she utilized, the testatrix’ home drawn will approached the brink of having her testamentary scheme fail due to statutory insufficiency.

In another probate proceeding, the issue is whether the decedent, who could neither read nor write, executed her will in accordance with the requirements of EPTL. Suffok County Probate Attorneys said the two attesting witnesses, an attorney and his wife, testified pursuant to SCPA (Surrogate’s Court Procedure Act). The decedent executed the will by placing her “X” mark on the signature line. The attorney, based upon a belief that the “X” mark required clarification, added to the signature line the words “her mark” and then signed the decedent’s name.

The counsel’s intentions were noble. Unfortunately, the method he used to carry out these intentions raised rather than settled issues as to whether the instrument is entitled to be admitted to probate. Clearly, if his signing of the decedent’s name was intended to be a signing in her presence and her direction, the instrument could not be admitted to probate both because the attorney failed to sign his own name and because he then could not be counted as one of the two necessary attesting witnesses.

However, the propounded instrument can be saved by treating counsel’s additions to the signature line (“her mark” and the signing of her name) as meaningless surplus usage. Consequently, the decedent’s “X”, standing alone, is her signature on the will as required by EPTL, and the counsel’s own signature as an attesting witness can be counted as one of the two required attesting witnesses Nevertheless, if the testatrix can only sign her name by her “X” mark, the preferred practice is not to make any clarifications on the signature line but instead to recite in the attestation clause that the entire will was read aloud to the testatrix and that she signed it by placing her “X” mark on it.

The court is satisfied that the will was executed in accordance with the statutory requirements and that, at the time of execution, the testatrix was in all respects competent to make a will and free from restraint. Accordingly, the propounded instrument is admitted to probate.

Every person involve in executing a will must exercise extreme care to make sure that all is made accordingly. If you want to probate a will, consult the Bronx County Probate Lawyer as well as the Bronx County Estate Administration Attorney or Bronx County Estate Litigation Lawyer from Stephen Bilkis and Associates.