Opinion
2020-676
12-07-2020
In the MATTER OF the Probate Proceeding, Will of Mary Katherine BOWEN, Deceased.
Daniel J. Bloom, Esq., Bloom & Bloom, P.C., Attorneys for Petitioners
Daniel J. Bloom, Esq., Bloom & Bloom, P.C., Attorneys for Petitioners
The following papers were read and considered on Petitioner's application for a Decree admitting to probate the Last Will and Testament of Mary Katherine Bowen:
The Verified Petition of Stephanie Marie Bowen, Katelynn Bowen and Thomas Edmund Bowen, Jr. filed on October 8, 2020;
Affidavit of Will Condition filed on October 8, 2020 with Exhibit A;
Affidavit of Comparison filed on October 8, 2020 with Exhibit A;
Affidavits of Attesting Witnesses filed on October 8, 2020;
The purported Last Will and Testament of Mary Katherine Bowen dated July 20, 2020.
BACKGROUND
Decedent Mary Katherine Bowen died on September 6, 2020 leaving a document purported to be a last will and testament dated July 20, 2020 (the "Will"). The Will bequeaths the Decedent's residuary estate to her three children, in equal shares, per stirpes: Stephanie Marie Bowen, Katelynn Bowen and Thomas Edmund Bowen, Jr. There are no other beneficiaries under the Will. The Will appoints the Deceased's three children as Co-Executors acting jointly.
The three children have petitioned the Court to probate the Will and have sought the issuance of Letters Testamentary. No objections have been filed.
A. Probate of Decedent's uncontested Will
Generally, the decision to dismiss objections and to admit a will to probate lies within the sound discretion of the trial court and will remain undisturbed absent a finding of abuse of its discretion. In re Estate of Young , 289 AD2d 725, 738 (3d Dept. 2001).
Even with the lack of any objections to the validity of a will, a court must inquire to the genuineness of the will and the validity of its execution, as well the competency or capacity of the testator. See SCPA § 1408(1), (2).
Here, included with the Petitioners' filings are self-executing affidavits of the witnesses, which create a presumption that the Will was duly executed and constitute prima facie evidence of the facts therein attested to by the witnesses. In re Estate of Leach , 3 AD3d 763 (3d Dept. 2004).
Regarding testamentary capacity, there is a general presumption that the testator possesses the requisite testamentary capacity to make a valid will until it is proven otherwise. Matter of Beneway , 272 AD 463 (3d Dept. 1947). Furthermore, affidavits executed by subscribing witnesses who state that testator appeared to be of sound mind and memory to make a will, such as the affidavits presented here, create the requisite presumption of testamentary capacity. In re Estate of Leach , 3 AD3d 763 (3d Dept. 2004) ; In re Estate of Friedman , 26 AD3d 723 (3d Dept. 2006) ; In re Estate of Castiglione , 40 AD3d 1227 (3d Dept. 2007).
Based upon the current record, the Petitioners have established, prima facie , the Decedent's testamentary capacity, as well as the Will's genuineness and due execution. However, there is a question as to whether or not the Will satisfies all writing, signature, attestation and witness requirements of EPTL § 3-2.1 due to missing, omitted or cut-off text that is apparent from the bottom of each page of the Will.
B. The sufficiency of Decedent's Will in light of missing, omitted or cut-off text
The Petitioners note that the bottom of each page of the Will is missing text from the electronic draft of the Will that was provided to the Decedent for her to print and sign. By their Affidavit of Will Condition, the Petitioners explain that the Will was e-mailed to the Decedent (in light of Covid-19 restrictions) in a 8? x 14? printable format, but ultimately printed upon 8? x 11.5? paper (and thereafter signed and witnessed), resulting in a written/signed Will that has missing, omitted or cut-off text at the bottom of each 8? x 11.5? page.
A will may be admitted to probate, although by oversight there was omitted from it an entire page of language. See, e.g., Estate of Hall , 118 Misc 2d 1052, 1055 (Sur. Ct., Bronx Co., 1983). The key question in such a scenario is whether, "...the instrument as executed constitutes a full testamentary scheme encompassing a distribution of decedent's entire testamentary estate, and the nomination of a fiduciary, without resort to any of the language contained on the missing page or elsewhere." Estate of Hall , 118 Misc 2d at 1055 ; see also EPTL § 3-2.1(a)(1)(A).
Here, it appears that a novel scenario is presented: missing, omitted or cut-off text at the bottom of each page of the Will due to a difference between the electronic format in which the Will was prepared and the paper upon which it was printed-out for execution. Nevertheless, the same analysis in Estate of Hall applies. This Court is satisfied that Will at bar contains the full testamentary scheme of the Decedent, which was simply to bequeath her estate to her three children equally, by stirpes. None of the key language concerning the Decedent's full testamentary scheme is absent from the Will due any missing/omitted/cut-off text and no resort to that text is required in order to discern the Decedent's full testamentary scheme. Furthermore, the signature of the Decedent at the end of the Will, as well as the signatures of the attesting witnesses thereafter, are unaffected by the missing/omitted/cut-off text conditions of the pages observed in this Will.
Accordingly, this Court concludes that the missing/omitted/cut-off text on each page of this Will does not compel the denial of probate to the instrument as executed. EPTL § 3-2.1 ; Estate of Hall , supra .
CONCLUSION
For the reasons stated above, the Verified Petition herein is granted and the Last Will and Testament of Mary Katherine Bowen dated July 20, 2020 is hereby admitted to probate and, consistent therewith, Letters Testamentary shall thereupon issue to the nominated Co-Executors, Stephanie Marie Bowen, Katelynn Bowen and Thomas Edmund Bowen, Jr., without bond.
A Decree admitting the Will to probate shall issue in conformity herewith.
This constitutes the Decision and Order of the Court.