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The Ancient Document Exception For A NY Will

“In order to qualify as an ancient document, a New York will must show that the will is over 30 years old, was taken from a natural placed of custody, and is of a suspicious nature” (Matter of Brittain, 54 Misc.2d 965 [Surr. Ct. Queens Co. 1967]; See also, Matter of Cafferky, 38 Misc.3d 1219(a) [(Surr. Ct. Bronx Co. 2013)], Matter of Gallagher, 23 Misc.3d 1126 (A) [(Surr. Ct. Bronx Co. 2009)].

The Surrogate Court in Richmond County follows the Federal Rules of Evidence in that a document need only be 20 years old to be considered an ancient document.

However, a valid will must not only satisfying this one element of the ancient document exception, the NY will must satisfy the other necessary elements, namely that the purported will was taken from a natural place of custody and is of an unsuspicious nature.

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 in surrogates Court.

The totality of circumstances under which the ancient document exception is used to probate a purported will has to be met to permit probate of an NY will.

From case law, for a purported NY will to be deemed ancient document, prima facie evidence of proper execution of such an instrument is whether the will contains an attestation clause. (Matter of Derrick, 88 A.D.3d 877, 879 [2nd Dep’t. 2011]; Matter of Pascal, 2005 N.Y.Misc. LEXIS 4403; 234 N.Y.L.J. 82 [Surr. Ct. Queens Co. 2005), Matter of Brittain, 54 Misc. 2d 965 [Surr. Ct. Queens Co. 1976].

Further prima facie evidence of a purported will’s proper execution is if the will was drafted and prepared by an attorney. (See Matter of Derrick; Matter of Brittain).

While it has not been defined as to what constitutes a “natural place of custody,” case law has suggested such custody can be established if the purported instrument is held by a third-party or attorney-draftsman. (See Matter of Pascal, where instrument offered for probate was in the possession of the attorney-draftsman at the time of decedent’s death).

An NY will could be admitted to probate as an ancient document if the instrument is “more than thirty years old, and the genuineness of its execution can be established by its unsuspicious appearance, “and after looking to “other circumstances”. The term “unsuspicious appearance” has been suggested that it is geared towards a superfluous interpretation of the context of the will itself. (See, e.g., Estate of Wermund, 2008 N.Y.Misc.LEXIS 4823, 240 N.Y.L.J. 14 [Surr. Ct. Queens Co. 2008]).

The will brought before the Queens probate court in Estate of Wermund was admitted as an ancient document as it was about 40 years old, decedent’s signature appeared on each page and the end of the document, it was signed by two witnesses and contained an attestation clause.

Hence, in order for a NY will to be valid it should have a named executor, and an attestation clause in order for it to be unsuspicious in nature and in order to establish the genuineness of its execution.

The Queens Surrogate Court also found in Estaste of Wermund, that the “contents and the physical appearance of the instrument were of an unsuspicious nature.” Id. (emphasis added). The purported will in Estate of Wermund designated the decedent’s father to be the executor of the estate, and decedent’s mother as successor executor and it bequested the decedent’s entire estate to both the father and mother equally.

In Matter of Pascal, the instrument offered for probate was determined to qualify as an ancient document as it was deemed to be unsuspicious in appearance and “the testamentary plan [was] natural.” (emphasis added). The probate courts determination that the testamentary plan was natural was based on the fact that it devised the whole estate to decedent’s surviving spouse, and to her children if the spouse should predecease decedent.

The purpose of the ancient document rule should be emphasized. The purpose of allowing probate of an NY will under the “ancient document” exception is: 1) due to length of time that has passed, testimonial evidence of witnesses to the execution of the will is likely to be unavailable; and 2) the age of the document along with the “place of custody, its unsuspicious appearance, and perhaps other circumstances, suffice, in combination, as evidence to be submitted to the jury.” Matter of Hehn, 6 Misc.2d 801 [Surr. Ct. Nassau Co. 1957). This exception is intended to dispel the injustice that may occur by denying probate of a will that contains the testator/testatrix’s true intentions merely due to the fact of the documents age and death of witnesses who could be examined by the court as to the documents veracity.

However, this exception is not intended to dismiss the requirements of formal execution of a proper will under the EPTL. Thus a document does not qualify for this exception if it fails to meet the formality requirements of EPTL § 3-2.1.

New York Attorney Michael Camporeale

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