Opinion
263251.
Decided May 18, 2006.
Richard M. Lipsman, Esq. (attorney for petitioner), New York, NY.
Joseph Goldstein, Esq. (guardian ad litem), Dollinger Gonski Grossman, Esqs., Carle Place, NY.
In this uncontested probate proceeding the court is faced with the consequences of a testator's attempt to alter her Will after its execution.
Phyllis Menchel died on April 28, 2005 survived by her two adult children; her daughter Ivy Menchel and her son Alan Menchel. They are her sole distributees (EPTL 4-1.1[a][3]; EPTL 1-2.10; EPTL 1-2.16]. Alan Menchel is married to Randi Menchel and they have two infant children, Gavin and Syndie Menchel. Ivy Menchel is the petitioner and nominated executor.
The Will offered for probate is dated February 21, 2003. It was not drafted by an attorney nor was its execution supervised by an attorney. The Will appears to be a form on which information was inserted by typing. It is signed by the testator and three attesting witnesses. An acknowledgment of the testator's signature was also taken by a notary public at the time of execution. The instrument offered for probate also contains strike outs, obliterations (apparently by the use of correction fluid) and handwritten interlineations. These alterations were apparently made by the testator on or after February 17, 2004. The evidence that such alterations were made after execution are the interlineation on the Will of "2/17/04" and a handwritten notarized statement by the testator dated April 20, 2004 attached to the Will.
The original typed Will provides as follows:
"I direct that . . . my property be bequested in the manner following:
IVY MENCHEL 50% of all investments monies, such as bank accts, stocks, bond, etc.,"
In making the alterations, on that line the testator struck out "50%" and handwrote "70% PM" and also wrote "70% PM" in the left-hand margin next to that line.
The original Will also follows the words "all investments monies, such as bank accts, stocks, bonds, etc.," with four lines of six ditto (") marks. Careful examination of the original filed document indicates the presence of correction fluid in the area above the typed names of decedent's grandchildren "Gavin Menchel" and "Syndie Menchel." Further examination of the same original filed document indicates the presence of correction fluid in the area between Ivy Menchel's typed name and Gavin and Syndie Menchel's typed names and in the area below "50%" on the Ivy Menchel typed line. The testator in her own hand wrote "15% PM" next to both of her grandchildren's typed names over apparently typed numbers and percentages blocked out by correction fluid. She also hand wrote "15%/15%" in the left-hand margin next to the names of her grandchildren. She also struck out three of the four lines of six ditto marks by scribbling across them apparently in an attempt to delete them, placed her handwritten initials and the date in the right-hand margin and signed her name underneath all of her attempted alterations.
Counsel, in his affirmation in support of probate of the altered instrument, states that upon information and belief (the source not identified) at the time the instrument was executed (presumably February 21, 2003) decedent bequeathed 50% of her investments, bank accounts, stock and bonds to her daughter Ivy Menchel, 25% thereof to her grandson Gavin Menchel and 25% thereof to her granddaughter Syndie Menchel. Counsel also affirms that shortly before decedent's unexpected death following surgery, she had contacted him and arranged for the execution of a new Will in proper form. He states that at that time she advised him of the provision of her Will, her revised dispositions and the writing concerning the revisions dated April 20, 2004.
The April 20, 2004 writing states, in part:
"A revision of my Will and wishes. All my monies, investments, stocks, bonds, etc. to be distributed as follows:
Ivy Mechel 70%
Gavin Menchel 15%
Syndie Menchel 15% . . ."
This writing was handwritten, signed and notarized by a notary public.
The general rule with regard to the legal effect of alterations to a Will is that where the alteration occurred prior to the execution of the Will, the Will is to be admitted to probate in its altered form. If the alteration occurs after the execution of the Will, the alteration forms no part of the Will and the Will is probated in its original form (EPTL 3-2.1 [a][1][B]; Matter of Tier, 3 Misc 3d 587, 588; Matter of Steffenhagen, 77 Misc 2d 624; 2 Bowe-Parker, Page on Wills § 22.2; 2 Warren's Heaton, Surrogate's Courts, § 41.13[3] at 6th [ed rev]). An alteration bearing a date subsequent to the date of execution of the original Will, in the absence of evidence that the alteration was executed with the formalities of due execution ( see EPTL 3-2.1), is intrinsic evidence of the invalidity of the alteration ( Matter of Steffenhagen, 77 Misc 2d 624, 631; Matter of Clark, NYLJ Mar. 21, 2002 at 24, col 5).
Since in this case the attesting witnesses have no recollection of the dispositive provisions of the original Will, and considering the dated interlineation and the April 20, 2004 writing, it is clear that the decedent altered the provision of her Will after its execution without the statutory formalities. Thus, ordinarily the Will would be admitted to probate in its original form ( Matter of Clark, NYLJ Mar. 21, 2002 at 24, col 5). However, in this case because of the correction fluid obliterations, it is difficult to determine what the dispositive provisions were in the original Will. Where it is impossible to determine from the Will itself or extrinsic evidence the words or numbers which were erased and obliterated, a serious problem arises (2 Bowe-Parker, Page Wills, § 22.3). The court notes that the affirmation of counsel that the decedent discussed the changes made in her Will with him is hearsay and incompetent evidence to establish the original provisions of the Will ( Matter of Kent, 169 AD 388, 390-391).
Examination of the filed document would indicate that with four rows of ditto marks that there is a possibility that the original Will contained a provision for at least two other beneficiaries whose names and percentages were obliterated by correction fluid. Thus, there is also the possibility that in the original form of the Will, the percentages for the grandchildren were, in fact, less than the 25% claimed by counsel. It is well settled law that a Will cannot be partially revoked by an act of revocation or obliteration, the sole method of partially revoking a Will being by a subsequent written instrument executed with the statutory formalities ( Lovell v. Quitman, 88 NY 377; Matter of Steffenhagen, 77 Misc 2d 624; EPTL 3-4.1[a][1]; see Fifth Report of the State of New York Commission on Estates, Leg. Doc [1966] No. 19, March 31, 1966 at 718). Where an abortive attempt is made to partially revoke portions of a Will, as in this case, the Will must be admitted to probate in the form in which it was originally executed if the original language can be ascertained ( see Fifth Report at 719; Turano, Practice Commentaries, McKinney's Cons. Law of NY, Book 17B, EPTL 3-4.1 at 490; see e.g. Matter of Clark, NYLJ, Mar. 21, 2002 at 24, col 5). On the other hand, the rule has developed that in the event of an abortive attempt at partial revocation by the act of the testator which renders a portion of the Will illegible or unintelligible, the Will is still admissible to probate in its altered form if the contents of the missing or altered portion of the Will cannot be ascertained, unless it is apparent that the unascertainable portion of the Will would materially affect the remaining parts of the Will and the probate of the remaining provision cannot be carried out without doing violence to decedent's testamentary scheme ( Matter of Kent, 169 AD 388; Matter of Ackerman, 129 AD 584; Matter of Enright, 139 Misc 192; see Fifth Report at 719, fn 63). It has been pointed out that the above rule constitutes, in practical effect, a recognition of an exception to the prohibition of partial revocation by physical act ( Matter of Dryer, 143 Misc 310; see Fifth Report at 719-720). In Matter of Dryer ( 143 Misc 310), the Surrogate discussed the principle that partial revocation by act was permitted in England and, at that time, fifteen (15) other states, and criticized the rule against partial revocation by act and recommended that the legislature adopt the English solution ( Matter of Dryer, 143 Misc 314-316). Despite these criticisms of the rule against partial revocation by act, the Legislature continued the rule in enacting EPTL 3-4.1. It would appear then that an argument can be made that by enacting EPTL 3-4.1, the Legislature had no intent to change existing law under DEL § 34, its predecessor statute ( see Matter of Steffenhagen, 77 Misc 2d 624, 631-632). The rule of the Kent ( Matter of Kent, 169 AD 388) case may still be valid law and thus there continues to be an exception to the rule against partial revocation where the obliterated portions of the Will cannot be ascertained and the remaining provisions can stand on their own ( see Restatement [Third] of Property § 4.1, Comment i; see e.g. Hansel v. Head, 706 So.2d 1142 [Ala. 1997]).
In this case, if the rule of the Kent case is applied to this Will, 50% of the decedent's personal property would pass to Ivy Menchel and the remaining 50% of that property would pass in intestacy. Thus, Ivy and Alan Menchel share the estate in intestacy and Ivy Menchel receives 75% (50% by Will, 50% of 50% by intestacy) of the personalty. Decedent's real property apparently passes in intestacy for this Will has no residuary clause and makes no reference to her real property.
Because the infants would be prejudiced by such a result, the court deems it necessary to appoint a guardian ad litem to protect their interests which may be in conflict or adverse to their father (SCPA 402). There also may be scientific evidence which could reveal the original form of the Will or other extrinsic and admissible evidence which would prove the terms of the original Will to the benefit of the infants. Accordingly, the court is, by separate order issued simultaneously herewith, appointing a guardian ad litem for the infants Gavin and Syndie Menchel. At this time the petition to probate the Will as modified is denied.
The guardian ad litem and counsel are directed to appear in this court for a conference on this matter on Thursday, June 8, 2006 at 9:30 a.m.
This is the decision and order of the court.