Opinion
2018-950
03-14-2019
MATTER OF Michael F. KEARNEY, Deceased.
For Petitioner: Bernadette M. Crowley, Esq.
For Petitioner: Bernadette M. Crowley, Esq.
A probate petition has been filed by Patrick Kelly, the nominated Executor. The Petition requests that the instrument purporting to be the Last Will and Testament of the decedent, Michael Kearney, dated July 5, 2016, be admitted to probate. The Petition also asks that Patrick Kelly be appointed the Executor of the Estate.
Even though this probate proceeding has not been contested, and all distributees have waived service of a citation, the court retains an independent obligation to determine whether a propounded will has been duly executed. [Matter of
The propounded instrument is a four-page stapled document, which was executed under the supervision of an attorney. The decedent signed the bottom of the first page, and placed his initials at the bottom of the second page. The decedent also signed the third page — immediately after the last dispositive provision, and just before the attestation clause that was signed by two witnesses. The fourth page of the stapled document is an Affidavit of Attesting Witnesses. This self-proving affidavit complies with the requirements of SCPA § 1406.
"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 AD3d 872, 873 (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) ].
"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 AD3d 791 (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 AD3d 941, 943 (2d Dept 2011) ].
Applying these presumptions to the propounded instrument, the Petitioner has clearly made the requisite prima facie showing of compliance with the last three elements of due execution. The only remaining question is whether the testator's signature on the bottom of the first page of the instrument runs afoul of the statutory requirement that the testator's signature appear at the end of the will. The answer to this question must be determined as a matter of law. [ Matter of Zaharis , 91 AD2d 737, 737 (3d Dept 1982), aff'd 59 NY2d 629 (1983) ].
EPTL 3-2.1(a)(1) "clearly 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."[ id. at 737 ]. "This statutory provision requiring the subscription of the name to be at the end is a wholesome one and was adopted to remedy real or threatened evils." [ id. at 737. See also Younger v. Duffie , 94 NY 535, 539 (1884) ("The purpose of the law which requires the subscription to be at the end of the will is to prevent fraudulent additions to a will before or after its execution") ]. While this driving purpose is worthy of steadfast protection, it has also been long recognized that "[f]orm should not be raised above substance in order to destroy a will." [Matter of Field , 204 NY 448, 457 (1912) ].
Here, the proponent of the will does not rely on the signature that appears at the bottom of the first page. [see Matter of Jarvis , 124 Misc 563, 564 (Sur Ct Erie County 1925) ]. Instead, the proponent relies exclusively upon the signature that appears on the third page, after the last dispositive provision and before the attestation clause.
Under these circumstances, the signature on the bottom of the first page does not engender any concern that there has been an attempt to circumvent the decedent's wishes or to evade the statutory scheme. [see Matter of Leslie , NYLJ, Jan. 17, 2014 (Sur Ct Bronx County) ]. By placing his signature on the bottom of the first page, and his initials on the bottom of the second page, the testator merely sought to authenticate each page of the stapled document by contemporaneously adding his mark thereto. Seen in this light, the signature that appears on the bottom of the first page promotes, rather than defeats, the statute's laudatory purposes. Therefore, the Court finds no legal reason why the Will may not proceed to probate.
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 July 5, 2016, 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 Patrick J. Kelly upon properly qualifying for such office. Any Preliminary Letters Testamentary that were previously issued are hereby revoked.
This constitutes the Decision, Order and Decree of the Court.
Jacobovitz , 58 Misc 2d 330, 333 (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") ].