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Will Falls Short Of Required ‘Formality’

Reprinted with permission from the “2013-08-22” edition of the “New York Law Journal” © “2013” ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.

“New York Law Journal”

Andrew Keshner
2013-08-22

A woman may have struck the right sentiment by signing her will “Love and Kisses, Mom” more than two decades ago, but that was not enough for a surrogate to accept a handwritten document riddled with grammatical errors, vague Statements and other defects.

“Though this Court often looks to the principles of fundamental fairness and equity when discerning a testator’s true intent, there is an initial level of formality one must achieve when executing a will. This instrument does not even come close to meeting the requisite level of formality,” Staten Island Surrogate Robert Gigante (See Profile) wrote in Matter of the Estate of Netter, 2011-733/B,C,D,E, a denial of a petition to probate.

Gigante said the will failed attestation and execution requirements, and its language was “far too vague and inconclusive to create a binding and effective will.”

Mary Netter’s purported April 1989 will bequeathed to her daughter Georgianna her house, her car “and all its belongings to do as she sees fit.”

The will also said, “If the house is really sold for a large amount, then I would like my Grandchildren including Paulie’s Jo Ann and James. All receive $100 each, also my great grandchildren [sic]. By then what’s [sic] left can be divided [sic] 7 ways. I worked side by side with Dad. No one else did. God Bless all my children. I beg everyone someday speaks to each other before I die or at my wake.”

The will urged family unity, continuing, “Always any one in need be there for each other… Love each other always. Love 6 Kisses, Mom.”

Netter died in July 2009, according to a Staten Island Advance obituary, which said the survivors included two sons, two daughters and 28 grandchildren.

Georgianna asked Gigante to probate the will in August 2012. Months later, another daughter, trances Valek, and Paul, Neller’s son, objected to the will’s contents and allegedly improper execution.

Prior to Georgianna’s probate bid, the pair filed for letters of administration themselves. The objectants argued their mother was not of sound mind at the time. Moreover, the will was the product of undue influence of Georgianna, they contended. The pair also claimed the will was forged.

Gigante observed that Estates, Powers & Trusts Law §3-2.1 requires that a will be signed by the testator in the presence of witnesses. It does not have to be typed.

The judge noted there was no way to determine if Neller signed the will in front of witnesses and “no proof’ she declared the document to be hers in their presence as the law required.

It was not supervised by an attorney either, denying a presumption of validity.

Both witnesses are now dead, making it impossible to determine whether Neller acknowledged to them it was her will—or that they were even present for the signing. The will did not include any sort of affidavit from the witnesses attesting to its validity or the circumstances of their signatures.

Georgianna asked Gigante to accept the will pursuant to the doctrine of ancient documents. The doctrine permits judges to probate wills where the witnesses are dead or unavailable. The requirements for admission under the doctrine include the will’s “unsuspicious appearance.”

But Gigante said he could not conclude that the will seemed “unsuspicious,” pointing to “the grammatical errors, unclear statements, handwritten nature of the proposed will, and its general appearance.”

He also said the record did not mention where the will was kept during Neller’s lifetime or where it was found.

“Because the document does not meet the requirements of the ancient document exception, and the will’s due execution cannot be proven due to the death of the witnesses, probate of the will must be denied,” Gigante wrote.

The objectants were represented by Michael Camporeale of Staten Island. He said the judge echoed the same concerns about the purported will that he raised in his court papers.

Gigante “saw this very clearly like I did. He applied the correct law and the correct outcome came. It would’ve come anyway,” said Camporeale, noting that he had made it clear as he litigated the matter that he planned on seeking summary judgment.

Carl Baker of FitzGerald Morris Baker Firth in Glen Falls, the chair of the New York State Bar Association’s Trusts and Estates Law Section, said the case’s facts were uncommon.

“Either people don’t do wills or do it with an attorney and get it properly signed and witnessed,” he said. Georgianna was represented by John Newman of Jericho, who declined to comment.

Gigante noted that David Kober, a Brooklyn Law School third-year student, assisted with the research and writing of the decision.

@Andrevv Keshner can be contacted at akeshner@aim.com.

Copyright 2013. ALM Media Properties, LLC. All rights reserved.

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