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 It is established that the will has not been revoked, and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 2: The Signature

One of the most controverted aspects of the Brooke Astor will contest case was whether the signature that followed the last of three amendments (also known as a codicil) to the wealthy socialite’s 3 March 2004 Will was forged.   At stake were millions of dollars that would potentially be redirected to her son Anthony D. Marshall.  A forensic expert hired by Mrs. Astor’s court-appointed lawyer concluded that Astor, who was 101 years old at the time and suffering from Alzheimer’s, was too frail to have signed the codicil herself.

A signature on a Will attests to the testator’s intentions as expressed in the provisions of the Will.  A forged signature on a Will or on a codicil is of grave concern because it acts to circumvent or to counterman the specific intentions of the testator and replace them with the forger’s directives.  New York, therefore, imposes very tight restrictions on the signature at the end of a Will or a codicil.

In general, New York’s statute on the execution of Wills (EPTL § 3-2.1) does not allow a holographic Will, that is a Will handwritten and signed by the testator without the presence of attesting witnesses.  The purpose of the witness rule is to verify that the testator actually created the Will instrument, and that the testator had testamentary capacityThere are several emergency exceptions to the statute concerning holographic Will found in EPTL § 3-2.2.  These include armed forces personnel on active duty and mariners at sea.  However, these holographic Wills will expire one year following discharge from the armed forces.  The law presumes that within one year after discharge the individual has enough time to create and sign a properly witnessed Will.

A Will is usually signed during a Wills execution ceremony.  At that time, the testator signs the Will in the presence of the attesting witnesses.  The testator’s signature need not be legible.  New York even allows for an “X” as a signature.  If the testator is physically unable to sign without assistance, a guiding hand is allowed, so long as it is the testator’s intent that assistance be provided to sign the document.  If the testator is completely unable to sign the document, then another person may sign in the testator’s stead so long as it is done under his or her director and in the testator’s presence.   This is known as a proxy signature.  The proxy must also sign his or her name, and will not be included as one of the two necessary attesting witnesses.  In such circumstances, it is wise to videotape the Wills ceremony in anticipation of a potential Wills contest.

The testator’s signature must be placed at the end of the Will or the codicil.  Any words that follow the signature will be ignored.  However, if the words that follow the testator’s signature are material to the completion of the distribution plan, then the entire Will is invalid.  The person would die intestate, and his or her estate would be subject to New York’s default intestate statute (EPTL § 4-1.1).

New York requires two attesting witnesses to the testator’s signature.  The testator must sign the Will in the presence of each witness.  But each witness need not sign in the presence of the other.  The execution ceremony must be completed within 30 days of the time when the first witness signs, not when the testator signs.

In the case of a codicil (an amendment or supplement to the Will), it must also be executed with the same formalities as a Will.  For a codicil, however, New York does not require that the witnesses sign in each other’s presence or that they sign in the presence of the testator.

Though a self-proving affidavit is not required for a valid Will in New York, it is nonetheless a very good idea.  Your attorney can prepare this form for you as part of your Wills package.  The purpose of the self-proving affidavit is to certify the validity of the testator’s signature in the event of a Wills contest.  The testator and three witnesses must sign the affidavit together in the presence of a Notary Public (many attorneys are also notaries public).  The Notary will require that the testator and the witnesses swear an oath as to the authenticity of the signature, and may require photo identification of the testator and the witnesses.  The self-proving affidavit will then be affixed to your Will.

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 the requirements for the witnesses, and the role that the witnesses play in assuring the validity of 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.