Opinion
File No: 2021-1136
01-07-2022
In the MATTER OF Probate Proceeding, ESTATE OF Marion T. GANCAZ, Deceased.
The Petitioner is represented by Carl Wolfson, Esq., O'Connor & Partners, PLLC, 11 Market Street, Suite 203, Poughkeepsie, NY 12601 (845) 404-1881.
The Petitioner is represented by Carl Wolfson, Esq., O'Connor & Partners, PLLC, 11 Market Street, Suite 203, Poughkeepsie, NY 12601 (845) 404-1881.
Michael G. Hayes, S. A probate petition has been filed by Gary K. Gancaz, the decedent's son and nominated Executor. The petition requests that the instrument purporting to be the Last Will and Testament of the decedent, Marion T. Gancaz, dated April 26, 2000, be admitted to probate. The Petition also asks that Gary Gancaz be appointed the Executor of the Estate.
The propounded instrument is a simple, two-page stapled document containing three substantive paragraphs. All three of those substantive paragraphs appear on the first page of the document. The decedent signed the bottom of the first page, immediately after the last dispositive provision. The decedent also signed the second page, which is limited to a signature line for the testator, and an attestation clause which was signed by two witnesses and the attorney-draftsman who supervised the execution ceremony. These witnesses also signed a self-proving affidavit during the execution ceremony, which has been filed with the Court.
"The proponent of a will has the burden of proving that the propounded instrument was duly executed in conformance with the statutory requirements." [ Matter of Sabatelli , 161 A.D.3d 872, 873, 76 N.Y.S.3d 207 (2d Dept. 2018) ]. The elements of due execution are: (1) the testator signed the instrument at its end; (2) the testator signed the instrument, or acknowledged his signature, in the presence of at least two attesting witnesses; (3) the testator declared the instrument to be his will in the presence of the attesting witnesses; (4) the testator asked the attesting witnesses to sign the instrument, and they signed it within 30 days of each other. [ EPTL § 3-2.1(a) ].
Even though this probate proceeding is not contested, the court retains an independent obligation to determine whether a propounded will has been duly executed. [Matter of Jacobovitz' , 58 Misc. 2d 330, 333, 295 N.Y.S.2d 527 (Sur. Ct., Nassau County 1968) (Bennett, S.) ("The Constitution and statutes impose on the judge of the surrogate's court more than just a pro forma or cursory obligation as to the testamentary capacity of the decedent, the genuineness of the will, and the validity of its execution. The law imposes upon the court the duty to determine these requirements on its own initiative ... [I]f the conscience of the court is not judicially satisfied that the instrument contains the last will of the deceased, the court is bound to deny probate")].
"Where, as here, the attorney draftsman supervised the will's execution, there is a presumption of regularity that the will was properly executed in all respects." [ Matter of Tuccio , 38 A.D.3d 791, 832 N.Y.S.2d 609 (2d Dept. 2007) ]. "A presumption of compliance with the statutory requirements also arises where a propounded will contains an executed attestation clause and a self-proving affidavit." [ Matter of Greene , 89 A.D.3d 941, 943, 932 N.Y.S.2d 544 (2d Dept. 2011) ]. Applying these presumptions to the propounded instrument, the Petitioner has made the requisite prima facie showing of compliance with all four elements of due execution. Although the decedent signed the propounded Will twice (at the bottom of the first page and again at the top of the second page), this does not run afoul of EPTL 3-2.1(a)(1), which "mandates that the testator must sign the will ‘at the end thereof’ thus retaining a requisite formality which has continued for well over a century." [ Matter of Zaharis' , 91 A.D.2d 737, 737, 457 N.Y.S.2d 995 (3d Dept. 1982), aff'd 59 N.Y.2d 629, 463 N.Y.S.2d 195, 449 N.E.2d 1273 (1983) ]. Rather, by placing her signature on the bottom of the first page (after the last substantive provision), and again at the top of the second page (on the designated signature line), the decedent merely sought to authenticate each page by contemporaneously adding her mark thereto. As such, these signatures promote, rather than defeats, the statute's laudatory purposes. [ Matter of Johnson , 69 Misc. 3d 357, 129 N.Y.S.3d 304 (Sur. Ct. Dutchess County 2020) ]. Therefore, the Court finds no legal reason why the Will may not be admitted to probate.
Petitioner also asks the Court to construe the third paragraph of the Will as waiving any requirement that the nominated Executor post a bond or other security. The first paragraph devises the decedent's entire Estate, "both real and personal, of every nature and kind," to petitioner. The second paragraph nominates petitioner as the sole Executor of the Estate. No successor Executor is nominated in that instrument. Finally, the third paragraph reads "I further direct that of my Executor shall be required to post any bond or security for the performance of his duties as such Executor, any statute to the contrary notwithstanding."
The attorney-draftsman of the Will has submitted an Affirmation in support of this requested construction. He states that the third paragraph was "incorrectly transcribed," and that the testator's intent was to waive any requirement that her son — her only legatee and sole distributee — post a bond or other security in connection with his service as the nominated Executor. He further states that the failure to insert the word "not" immediately before the words "be required" was a "scrivener's error," and that the third paragraph fails to reflect the testator's actual intent as a result of this inadvertent omission. Counsel also argues that the third paragraph "is not proper English" unless the missing "not" is supplied, and that the Court should treat this as additional evidence that the third paragraph does not accurately express the testator's intent. Finally, counsel states that there are no known debts of the Estate, and that requiring the nominated Executor (and sole beneficiary) to post a bond would cause unnecessary delay and expense in the administration of this modest and uncomplicated Estate.
When a party asks for construction of a will in a pending probate proceeding, a citation must be issued to all parties interested in the determination who have not yet appeared in the proceeding. Notice of the construction application must also be provided to all those persons who have already appeared in the proceeding, including any party who signed a waiver and consent to probate. [ SCPA § 1420(3) ].
The Petition is accompanied by an Affidavit of Heirship and a Family Tree [ 22 NYCRR § 207.16(c)(2) ]. These materials establish that the 94-year-old decedent was predeceased by her husband more than 20 years ago, that she signed the Will more than a year after her husband's death, and that she never remarried. These materials also show that petitioner is the testator's only child, and that she did not have any other children, surviving or deceased, born or adopted, marital or non-marital. Since there are no other legatees, no other distributees, and no other persons interested in the determination or otherwise entitled to notice of this application, the Court may entertain the request for construction without issuing process.
SCPA § 1420(3) states that the Court may determine the question of construction "upon the entry of a decree admitting the will to probate." A literal reading of this statute might suggest that the Court is compelled to first issue a probate decree, and to then construe the will in a successive decree. But the more practical approach is to read the statute as granting the Court the discretion to admit a will to probate and to construe the will in the same decree [ Matter of Noble's , ––– Misc. ––––, 95 N.Y.S.2d 375 (Sur. Ct. Westchester County 1950) ("A Surrogate is empowered to construe a will in a probate proceeding at or after the time of making the decree admitting the will to probate")].
This practical approach may be particularly conducive in those situations where the estate is modest, probate is unopposed, the construction determination is relatively straightforward, and entering a joint decree will avoid unnecessary expense and delay [see Matter of Halvardson's , 137 Misc. 75, 243 N.Y.S. 123 (Sur. Ct. Bronx County 1930) (a request for construction during probate was proper where the decedent "left a very small estate" and there were no objections to the propounded will)]. Those are the precise circumstances surrounding the request for construction of the Will that is being admitted to probate by this decree.
This practical reading of the statute is implicitly endorsed by the authority it grants the Court to "in its discretion, admit the will to probate and reserve the (construction) question for further consideration and decree." [ SCPA § 1420(3) ]. Stated differently, by granting the Court the discretion — but not the obligation — to defer consideration of the construction determination to a future decree, the statute implicitly recognizes the Court's authority to resolve the construction issue in the same decree that admits a will to probate. There being no logical reason to defer the pending construction question to a later moment, discretion favors construction of the Will in the same decree that admits it to probate.
"The paramount consideration in will construction proceedings is the testator's intent." [ Matter of Singer , 13 N.Y.3d 447, 451, 892 N.Y.S.2d 836, 920 N.E.2d 943 (2009). See also Matter of Bernstein , 40 A.D.3d 1086, 1087, 837 N.Y.S.2d 228 (2d Dept. 2007) ("The purpose of a will construction proceeding is to ascertain and give effect to the testator's intent")]. "The decedent's intent must be gleaned not from a single word or phrase but from a sympathetic reading of the will as an entirety and in view of all the facts and circumstances under which the provisions of the will were framed." [ Matter of Perlman , 150 A.D.3d 1012, 1014, 57 N.Y.S.3d 54 (2d Dept. 2017) ]. "Thus, the individual parts of the will must be read in relation to its dominant purpose or plan of distribution." [ id. at 1015, 57 N.Y.S.3d 54 ]. "All rules of interpretation are subordinated to the requirement that the actual purpose of the testator be sought and effectuated as far as is consonant with principles of law and public policy." [ Matter of Bonanno , 151 A.D.3d 718, 719, 55 N.Y.S.3d 437 (2d Dept. 2017) ].
Here, it is clear that the testator did not intend to compel petitioner to post a bond or other security in connection with his service as the executor of her Will. Petitioner inherits his mother's entire estate under the Will (and, if the Will was not admitted to probate, would inherit her entire estate as her sole distributee). If the petitioner posted a bond, he would essentially be providing security to himself (as the sole heir) for the faithful discharge of his fiduciaries duties. There would be no plausible basis for the testator to compel the petitioner to post a bond under these circumstances. And a fair reading of the Will reveals that the testator's intent was to the contrary. The affirmation of the attorney-draftsman also confirms that the testator did not harbor such an intent, and that instead she fully intended that her son serve without a bond. The attorney-draftsman's explanation that the word "not" was inadvertently omitted as the result of a scrivener's error is further corroborated by a reading of the third paragraph, which does not read properly as drafted, but which makes sense on its face when the word "of" is deleted immediately prior to "my Executor," and the word "not" is inserted immediately prior to "be required." Accordingly, the third paragraph of the Will is construed to read as follows: "I further direct that my Executor shall not be required to post any bond or security for the performance of his duties as such Executor, any statute to the contrary notwithstanding." [see Matter of Barr , 233 App.Div. 290, 252 N.Y.S. 122 (2d Dept. 1931), aff'd 258 N.Y. 592, 180 N.E. 346 (1932) (inserting the word "not" into the residuary clause of a will when the omission was an apparent scrivener's error, and inserting the missing word "would transform the clause in question from an unusual one to a usual one, (and) make the distribution equitable and consistent with all the expressions of the will and with well-recognized rules of construction")].
The probate application is without opposition; proofs having been duly filed on behalf of the attesting witnesses to the foregoing testamentary instrument; and it appearing that such proofs were duly executed and are genuine and valid; and that the decedent at the time of executing the same was in all respects competent to make a will and not under restraint; it is
ORDERED AND DECREED, that the genuineness of the Will, dated April 26, 2000, and the validity of its execution having been shown to the satisfaction of the Court, it is admitted to probate as the Last Will and Testament of the decedent pursuant to SCPA § 1408 and EPTL § 3-2.1, valid to pass real and personal property. The Will and this Decision and Decree shall be recorded, and Letters Testamentary shall issue to Gary Gancaz, upon properly qualifying for such office. Any Preliminary Letters Testamentary that were previously issued are hereby revoked; and it is further
ORDERED AND DECREED, that the third paragraph of the Will is construed to read as follows: "I further direct that my Executor shall not be required to post any bond or security for the performance of his duties as such Executor, any statute to the contrary notwithstanding."
This constitutes the Decision, Order and Decree of the Court.