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Formal Execution And Attestation Requirements For A Valid NY Will

For a NY will to satisfy the formalities of proper execution under EPTL §3-2.1 Pursuant to EPTL Section 3-2.1, a NY will must (1) be in writing, except for nuncupative and holographic wills authorized by 3-2.2; (2) it must be signed at the end by the testator; see, Matter of Winters, 302 N.Y. 666 [1951]) and (3) that the testator’s signature be affixed in the presence of the witnesses or that testator must acknowledge his or her signature to each attesting witness; (4) testator must declare to each attesting witness that the document they are signing is in fact his/her will; (5) must be signed by at least two attesting witness; (6) the witnesses shall sign and date the will within 30 days of each other and affix their addresses to their signatures.

There is a presumption of validity when an attorney supervises the execution of a will. See matter of Kindberg, 207 NY 220 (1912). See also matter of Finocchio, 270 AD2d 418 (2d Dept. 2000).

These formalities and planning techniques can be implemented and explored by the highly experienced NY estate planning lawyers at the Law Offices of Michael Camporeale.

We have successfully drafted, and probated numerous NY wills for well over a decade, and have been helping many families throughout the entire New York City metro area including Queens, New York, Westchester, Bronx, Brooklyn, Staten Island, Long Island, and Manhattan with the probate process.

The proponent of a NY will has the burden of proving that the propounded instrument was duly executed in conformance with the statutory requirements. (Matter of Mele, 113 A.D.3d 858 [2nd Dep’t, 2014]).

A Petitioner has to legally put forth evidence that the NY will was published in order for it to be valid, a failure to do it will invalidate a will in New York. The Court of Appeals has determined that a failure to properly publish an NY will is fatal to New York probate. (See, In re Pulvermacher’s Will, 305 N.Y. 378, 384-385 [1953]).

The Court of Appeals held, in In re Pulvermacher’s Will, 305 N.Y. at 384-385), while formality may be reduced where a holographic will is involved, the Court requires compliance, it must be executed with the same formalities as any other. Such is the command of the Legislature.

The Court further noted that to admit to probate such an instrument, without proof of the formalities, “opens the door to the nullification of the statutory provision and probably in some cases to fraud’.” (In re Pulvermacher’s Will, 305 N.Y. at 384).

If a New York probate Court, would allow probate of a defective instrument which was never properly executed or published, it would clearly be a nullification of the statutory provision and would also be a fraud.

While the informality of an NY will do not in itself deny the testamentary effect of said instrument (see, Matter of Kenneally, 139 Misc.2d 198 [Surr. Ct. Nassau Co. 1988]), the statutory requisites of a will must nonetheless be present.

The fact that a NY will is handwritten does not in it of itself prevent it from being probated in New York. Rather, the fact that the NY will lacks the formal requirements of due execution, as required by EPTL § 3-2.1 is why NY probate would be denied. A will must contain the required formalities in order to be in compliance with EPTL, to properly be admitted to probate in NY.

When an NY will is not supervised by an attorney it lacks the presumption of due execution. See matter of Liquori, NYLJ, March 1, 2001 at 22 col 4 (Sur Ct. Kings Cty).

The petitioner must establish that the testatrix signed the instrument in the presence of the alleged witness or that she acknowledged her signature to each of them pursuant to EPTL 3-2.1(a)(2).

The petitioner must establish that the testatrix declared the instrument to be his or her Last Will & Testament before the alleged witness pursuant to EPTL Section 3-2.1(a)(3).

Pursuant to EPTL 3-2.1(a)(4), attesting witness are required to, within a 30 day period, attest to the testatrix’s signature as affixed or acknowledged in their presence and at the request of the testatrix, sign their names and affix their residence address at the end of the will.

Often times attestation clauses also known as self-proving affidavits are affixed to NY wills pursuant to SCPA 1406 to give a presumption of validity to the witnesses signatures, especially in a case where the witness predeceased the testatrix. See matter of Yenei, 132 AD2d 870 (3rd Dept. 1987).

Without an affidavit of attesting witness, no presumption of validity to the procedure exists as required by EPTL 3-2.1(a)(4), which could result in a denial of probate in New York.

Pursuant to SCPA 1408(1) the NY surrogate Court must inquire particularly into all the facts and must be satisfied with the genuineness of the will and the validity of its execution before admitting the will to probate. The inability to establish that a NY willl execution adhered to the formalities of EPTL 3-2.1,will result in the denial of probate in NY.

An NY will must meet the formalities required by the EPTL, to include evidence of due execution, including but not limited to, that the alleged witnesses signed in the presence of the testator, that the alleged witnesses signed the NY will; a declaration by the Decedent to the alleged witnesses that he or she was signing a purported will, and proof of the alleged witnesses’ knowledge they were signing an instrument purported to be decedent’s will.

In Matter of Amico, 50 Misc.2d 681 (Surr. Ct., Kings Co. 1966) (hereinafter “Amico”), the Brooklyn probate court admitted a will in question to NY probate because it contained the words “last will and testament”, the witnesses signatures were dated, and the witnesses signatures were also “so close to [the testators] and the [testator’s] written words, ‘my Will and Testament, that it was inferred that they knew they were witnessing his NY will.”

The Brooklyn surrogate court thus determined that the “internal evidence of the will was sufficient to permit the inference that the subscribing witnesses must have known that they were signing a will.” The document itself had also been filed with the Brooklyn Surrogate’s Court in excess of thirty years.

The issue before the court in Matter of Kenneally, 139 Misc.2d 198, (Surr. Ct. Nassau Co. 1988), (hereinafter “Kenneally”), was whether a handwritten letter intended to be a codicil to the decedent’s will was properly executed. The Long Island Probate Court found that because the letter/codicil explicitly stated that the letter was a codicil to her will, the only question left by the Long island Surrogate Court was whether the codicil was properly “signed,” which the Long island probate Court determined in the affirmative.

Therefore, in order for an NY will to be valid it should explicitly state that it is decedent’s last will and testament, it should also be drafted and supervised by an attorney.

An NY will must satisfy the necessary requirements of due execution pursuant to EPTL 3-2.1. Petitioner must offer evidence that the New York will was properly published and conforms with the requisite formalities of EPTL §3-2.1in order to be allowed probate in New York.

New York Attorney Michael Camporeale

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