Probating a Lost Will or a Will as an Ancient Document

There are significant benefits to having an attorney prepare your Will.  Some are more evident than others.  In this post, we are going to discuss some less obvious but highly advantageous benefits for an attorney-drafted Last Will and Testament.

What happens if the attorney-draftsman who prepares your Will and supervises the execution ceremony dies before you do and the original Will, still in the custody of the attorney, is then lost?  What happens if, before you die, one of the witnesses to the Will also passes away?  There are a significant number of cases where a decedent signed a Will many years ago and where the original Will remained in the custody of the attorney-draftsman, leaving the decedent with only a conformed copy.  A conformed copy will contain the names and addresses of all signatories, including the testator/testatrix, but it is not signed by either the testator/testatrix or any of the witnesses.  The attorney’s “back” will be affixed to the conformed copy and marked as a conformed copy.

In order to prevent the probate of fraudulent Wills, New York’s SCPA § 1407 establishes what proof is necessary to admit to probate a lost or destroyed Will:

A lost or destroyed will may be admitted to probate only if

     1. It is established that the will has not been revoked, and

     2. Execution of the will is proved in the manner required for the probate of an existing will, and

     3. All of the provisions of the will are clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of the will proved to be true and complete.”

 

If there is a conformed copy of the original Will found among the decedent’s possessions, then that conformed copy will take the place of one of the credible witnesses.   The remaining credible witness must be able then to testify as to the substance of the original Will in order for the Will to be admitted to probate.   Recalling the substance of the Will meets the publication requirement.   In re Estate of Kleefeld , 55 N.Y.2d 253, 433 N.E.2d 521, 1982 N.Y. LEXIS 3542, 448 N.Y.S.2d 456 (Feb. 25, 1982),  the Court of Appeals reversed the Appellate Division’s ruling to admit the  conformed copy of a Will lost while in the possession of the attorney-draftsman to probate, holding that “each of the witnesses must testify to all the principal parts of the will” (Id., at 258).  Since the remaining witness could not recall the substantive parts of the Will, probate was denied.  The proponent of the Will could not meet its burden on the issue of due execution.

But what happens in the case where the attorney-draftsman has passed away as well as both attesting witnesses? One of the exceptions to the Federal Rules of Evidence against hearsay that applies even when the declarant is not available as a witness is called the “ancient document rule” (Rule 803(16)): “A statement in a document that is at least 20 years old and whose authenticity is established.”   New York State Surrogate’s Courts have a long history of borrowing from the ancient document rule when it comes to probating a an old Will where the witnesses have predeceased the testator.

New York’s SCPA § 1405 (4) states that “If all of the attesting witnesses are dead or incompetent or unable to testify by reason of physical or mental condition or are absent from the state and their testimony has been dispensed with as provided in this section the will may nevertheless be admitted to probate upon proof of the handwriting of the testator and of at least one of the attesting witnesses and such other facts as would be sufficient to prove the will.”

The courts have added three elements necessary to have a Will admitted to probate as an ancient document.  First, the Will must be more than twenty (20) years old.  Second, the Will must have been taken from a natural place of custody (for example, the decedent’s safe deposit box or filing cabinet).  And third, the Will must be of an unsuspicious nature.  Any alterations to the original Will must be fully explained. In In re Estate of Tier (3 Misc.3d 587,772 N.Y.S.2d 500, 2004 N.Y.Misc. Lexis 48 (Feb. 2, 2004), the Surrogate’s Court of New York County admitted an ancient document to probate but without the alterations made to the Will.  The proponent of the Will stood to benefit from the alterations and failed to produce evidence sufficient to show that the alterations preceded the Will execution.  Once the proponent failed to produce the evidence, the burden shifted to the residuary beneficiaries, the ones who stood to lose from the alterations, to show that the alteration preceded the Will execution.  Since the residuary beneficiaries failed to provide such evidence, the Will was admitted to probate in its original form and without the alterations.

However, in the case of a lost Will or a Will propounded as an ancient document, the court must still be satisfied under SCPA § 1408 of “the genuineness of the will and the validity of its execution,” as well as the competence of the testator and the absence of fraud and undue influence.  Thus, whether the Will offered for probate is a conformed copy or an ancient document, it is still open to be examined by any party to the probate proceeding under SCPA § 1404 either before or after the filing of objections.

If you would like to discuss your own personal situation with me, you can get a free 30-minute consultation simply by filling out this contact form.   I will get back to you promptly.

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What Constitutes a Valid Will in New York? Part 3: The Witnesses

By definition, a witness is one who provides evidence.  In the context of a Will attestation, witnesses are the persons who, by their presence, can provide a first-hand account of what they saw, heard or experienced during the Will execution ceremony.  By signing the document, they affirm that the maker of the Will (testator) has testamentary capacity and that the testator’s signature is authentic.

New York’s EPTL § 3-2.1 sets out the statutory requirements as to witnesses.   New York requires two attesting witnesses.  There are no statutory requirements regarding the qualifications of witnesses.  At the request of the testator, each witness must sign the Will and thereby affirm that the testator knows that he or she is making a Will, and that the testator has declared the document being signed as the testator’s last Will.  In New York, this is referred to as the publication requirement, and it is part of the Will execution ceremony.

The testator must sign the Will in the presence of the witnesses, but the witnesses need not sign in each others’ presence.  If the testator signs in the presence of only one witness, then the testator must acknowledge his or her signature to the other attesting witness.  In this case, the witnesses must sign within 30 days of each other.  In New York, there is a rebuttable presumption that the Will was signed by each witness within the 30-day window.  The presumption goes to due execution.  It is a rebuttable presumption because it can be challenged in a Wills contest and possibly overcome if proven otherwise.  The 30-day clock starts to run when the first witness signs the Will attesting the testator’s signature.

Each witness is asked to provide a current address, though failure to do so will not render the Will invalid.  The purpose for providing the address is that, should there be a Wills contest, the witness may be asked to provide testimony regarding the facts surrounding the Wills execution ceremony, such as the testamentary capacity of the testator or the authenticity of the testator’s signature.  The witnesses will need to be located in order to make an appearance in Surrogate Court.

Suppose that at the time of the Wills contest, one of the witnesses is dead or legally incompetent to testify.  What result?  In this case, the testimony of the other witness is sufficient.  Now suppose that neither witness is able to testify.  What result?  The Will proponent (the person presenting the Will in a probate proceeding before the Surrogate Court) must provide proof of the testator’s signature and of one witness.

Of course, problems associated with due execution may be overcome with a self-proving affidavit.  Unlike an attestation clause, which only acts to corroborate the witness’s testimony once called to testify or else to prove the witness’s signature, the self-proving affidavit acts as a substitute for the witness’s live testimony.  The affidavit has the same force and function as a deposition or interrogatory:  it is evidence of personal knowledge, and because the witness swears an oath, the affidavit is presumed to be truthful.   The affidavit will be notarized by a Notary Public (in many cases, the attorney overseeing the Wills execution ceremony is a notary public).  A self-proving affidavit should be prepared by an attorney in order to make sure that it conforms with the State statute.

In a self-proving affidavit, each witness swears an oath and signs an affidavit that recites all of the statements that they would make in court were they called to testify.  These statements refer to the testamentary capacity of the testator, and the signature requirements.  As a result, the affidavit is usually signed at the time of the execution of the Will.

What happens if one of the witnesses is also a beneficiary under the Will?  This is known as an interested witness.  New York’s interested witness statute is EPTL § 3-3.2 (a).  The signature of an interested witness does not make the Will invalid.  But it does make the bequest to the interested witness void.  This can have dramatic and unintended consequences.

Consider the case of the Matter of the Estate of Cynthia R. Wu (877 N.Y.S. 2d 886).  A provision of Wu’s Will provided for the following:  “All estate and inheritance taxes payable by reason of my death, in respect of all items included in the computation of such taxes, whether passing under this Will or otherwise, shall be paid by my Personal Representative or Trustee as of [sic] such taxes were my debts, without recovery if [sic] any part of such tax payments from anyone who receives any item included in such computation” (emphasis added).  Wu’s brother, Harry Wu, was the beneficiary of two life insurance policies totaling $3,314,215.   The problem was that Harry was also one of Cynthia Wu’s attesting witnesses at her Will execution ceremony, and therefore an interested witness. 

At issue was whether Harry Wu would be absolved from paying his ratable share of the estate taxes as provided for under the terms of the Will, or whether the fact that he was an interested witness made the provision in the Will void, making him subject to paying his share of the estate taxes.  Calling the rule about an interested witness “absolute,” the Surrogate Court, relying on a clear legislative intent to prevent fraud or undue influence, found against Harry Wu.  He was required to pay his ratable share of estate taxes from the proceeds of the life insurance policies.

Harry Wu’s bequest could have been saved by the supernumerary rule, that there were three witnesses and two were disinterested.  Wu attempted to claim this rule in his defense by claiming that the notary was the third witness.  And even though the notary knew that this was Cynthia Wu’s Will, she had not asked the notary to be a witness, a requirement under the statute.

Harry Wu’s bequest could have also been saved by an exception in the law.   Where the interested witness (in this case Harry) would have been a distributee had Cynthia died without a will (intestate), then the law allows the interested witness to take the bequest to the extent of the interested witness’s intestate share in the estate .  However, Cynthia was survived by her husband and two children, so Harry did not qualify as an intestate distributee (see my prior posting on the difference between an heir and a beneficiary).

The Wu case is a cautionary tale as to why you should have an attorney draft your Will instead of relying on boilerplate forms that are not tailored to your unique situation.  After all, no person’s estate and family situation is like any other, and your uniqueness should be reflected in the way that your Will is prepared:  a Will that is specifically drafted for you.  Your Will is, after all, one of the most important documents of your life and you should have the benefit of expert legal assistance in drafting it. 

The Surrogate Court in Wu was forceful in this regard:  “Any forfeiture resulting from unwitting use of a nontestamentary beneficiary as an attesting witness will most likely arise, as here, in the context of a tax nonapportionment clause covering assets passing outside of the will. It behooves any drafter using such clause to be fully informed of the testator’s nonprobate assets to avoid unintended consequences, some of which may have even greater potential for frustrating the testator’s intent.”

If you would like to discuss your own personal situation with me, you can get a free 30-minute consultation simply by filling out this contact form.   I will get back to you promptly.

In the next blog post, I will examine what constitutes undue influence with respect to a Will in New York.   I invite you to join my list of subscribers to this blog by clicking on “Sign me up!”  under Email Subscription on the left-hand side of the page so that you can receive a notification when the next installment has been published.  Thank you.