A Last Will and Testament in New York must comply with the basic statutory requirements provided by the estate laws. The primary statute regarding the fundamental aspects of Will preparation and execution is Estates, Powers and Trusts Law Section 3-2.1 entitled “Execution and attestation of wills; formal requirements”.
According to the statute, a Will is to be in writing, the testator is to sign at the end, and there must be at least two witnesses attesting to the signing. The New York Probate Lawyer Blog has published numerous articles discussing the requirements for the due execution of a Will and different issues that might arise, particularly in the context of a Will contest. In order for a Will to be admitted to probate, there must be a determination in the Surrogate’s Court that the document was duly executed.
The recent occurrence of the COVID-19 virus has made the ordinary execution of a Will difficult at times. In the past, once an individual was ready to sign a Will, he or she would gather, usually in an attorney’s office along, with the witnesses and the signing ceremony would be conducted. However, the COVID situation has created certain obstacles to the normal procedures due to lockdowns and social distancing. A recent Orange County estate case decided by Orange County Surrogate Timothy McElduff, Jr. on December 7, 2020 entitled Matter of Estate of Bowen demonstrates the type of problems that the COVID pandemic can produce.
In Bowen, the decedent executed her Will on July 20, 2020 and passed away on September 6, 2020. The document provided that the decedent’s entire estate was left to her three (3) children. While the testamentary disposition appears to be routine, a problem with probate arose because the bottom portion of each page of the Will was cut off. It turned out that when the Will was prepared, it was electronically transmitted to the decedent for signing in a 8.5” x 14” printable format. However, the Will was printed by the decedent on 8.5” x 11” paper and, thus, the end of each printed page was missing language.
While no objections to the Will were filed, the Surrogate needed to be satisfied that the Will was valid before it could be admitted to probate. In its analysis, the Court found that the Will was signed and witnessed and that those portions of the document were intact. It was recognized that the presence of self-executing affidavits by the Will witnesses provided prima facie evidence of due execution and also presumptively demonstrated that the decedent had testamentary capacity.
As to the missing language, the Court noted that the readable portions of the Will clearly expressed the decedent’s testamentary plan and that no essential part of the Will dispositions was missing. It was also important that the portions containing the signatures of the decedent and the witnesses were not affected by the cut-offs. Based upon the above, the Court was able to admit the Will to probate.
As can be seen from Bowen, the proper preparation and execution of a Last Will is essential for an estate plan to be effective. Careful consideration must be given to creating an estate plan as well as insuring that the signing process comports with the statutory mandates of the New York estate laws. These steps may prevent unnecessary estate litigation.
I have represented many clients in probate and other estate cases. Call Me Now for a free confidential review if you have a question regarding a Last Will or a Surrogate’s Court matter. We provide reasonable and flexible fee arrangements and personal representation.
New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 40 years resolve issues relating to guardianship and probate and estate settlement throughout New York City including the Bronx, Queens, Brooklyn, Manhattan, Nassau and Suffolk County. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial free consultation.