Opinion
No. 2010–517.
2010-10-5
In the Matter of the ESTATE OF Jean ALFORD, also Known as Jean Kay Alford, Deceased.
Richard S. Abbate, Esq., pro se petitioner.
LEE L. HOLZMAN, J.
In this uncontested probate proceeding the petitioner, a New York attorney, seeks letters of administration c.t.a. at the request of the nominated executor and only beneficiary, Roger John Piggott, the decedent's nephew. Piggott, a Canadian citizen, served as one of two attesting witnesses to the instrument. The petitioner requests a determination that EPTL 3–3.2(a)(1) is inapplicable to void the bequest to Piggott, as the propounded instrument was executed in Ontario, Canada.
The decedent's distributees are two sisters and two nephews, including Piggott, who are the children of a predeceased sister. The propounded instrument was executed on January 2, 2003 in Bradford, Ontario, Canada, while the decedent was visiting Piggott, and was witnessed by two witnesses, including Piggott. Paragraph 4 of the propounded instrument designates Piggott as the beneficiary of all personal property and, due to the nature of the estate, the petitioner indicates that Piggott is the sole beneficiary under the instrument. Jurisdiction was acquired over the decedent's two sisters, who defaulted, and a waiver and consent to probate was filed by Piggott's brother, the decedent's other nephew.
It appears that EPTL 3–3.2 was enacted to discourage the use of a beneficiary as an attesting witness in New York and to ensure that there is no incentive for an attesting witness-beneficiary to testify other than truthfully about the will execution ceremony. Here, voiding or diminishing the bequest to Piggot would not foster the purpose of EPTL 3–3.2 considering the following: (1) pursuant to EPTL 3–5.1(c) a will executed outside of New York is valid in New York provided that it was validly executed in the jurisdiction where the will was executed (thus, a will with only one attesting witness executed in a jurisdiction where one witness is sufficient would be valid in New York); (2) here, there is one attesting witness who is not a beneficiary and the bequest to an attesting witness-beneficiary is void under Canadian law only where the beneficiary exercised undue influence over the testator (R.S.O.1990; c S. 26, s.12); and (3) no interested party contests the will or requests that Piggot testify. Consequently, under the facts of this case, including that the will was executed in Canada and that the bequest to Piggot would not automatically be void under Canadian law, the court will not apply the provisions of EPTL 3–3.2 to diminish Piggot's bequest to his intestate share (see Matter of Williams, 176 Misc.2d 586 [1998] ).
The court is satisfied that the instrument dated January 2, 2003 was validly executed in compliance with the statutory requirements of the laws of Ontario, Canada (see EPTL 3–5.1[c][2]; R.S.O.1990, c S. 26, s. 4).
Accordingly, a decree has been entered admitting the will to probate, and letters of administration c.t.a. shall issue to the petitioner.