Opinion
2014-380925/A
02-27-2015
In the Matter of the Probate of the Last Will and Testament of Evelyn Newman Pfeffer, Deceased.
Lewisohn & Lewisohn(for objectant) 444 Merrick Road, Suite 112 Lynbrook, NY 11563 Reddy Levy & Ziffer(for petitioner) 85 Worth Street, 3rd Floor New York, NY 10013
Lewisohn & Lewisohn(for objectant)
444 Merrick Road, Suite 112
Lynbrook, NY 11563
Reddy Levy & Ziffer(for petitioner)
85 Worth Street, 3rd Floor
New York, NY 10013
Edward W. McCarty III, J.
Before the court in this probate proceeding is the question of whether the document offered for probate is a testamentary instrument.
The document in question provides:
Everything to go to Mitchell for fair, equal, just, agreeable honest distribution without causing any unjust anger, animosity.
It is signed by the decedent and dated July 8, 2014.
The law does not require that a last will and testament be in any particular form (Matter of Dash, 120 NYS2d 621, 625 [Sur Ct, Queens County 1953]). The instrument "must appear to seek to accomplish some one or more purposes of a will" (Matter of Mucklow, 242 AD 111, 113 [3d Dept 1934]). The test is whether the testator intended to transfer a present interest or whether the testator intended the instrument to have no effect until his or her death (Matter of Diez, 50 NY 88, 93 [1872]; Matter of Gehr, 117 AD3d 1405, 1408 [4th Dept 2014]).
The proffered instrument, although inartfully drafted, evinces an intent to transfer an interest upon the death of the testator. As such, it is a testamentary instrument capable of being offered for probate.
The question of whether an instrument meets the threshold requirement of a testamentary instrument is separate and apart from issues raised regarding capacity, due execution, fraud and undue influence (Matter of Langdon, 43 Misc 3d 1214 (A) [Sur Ct, Nassau County 2014]). Similarly, questions relating to the validity, effect and/or dispositions of property are reserved for consideration after the instrument is admitted to probate ( Matter of Martin, 17 AD3d 598 [2d Dept 2005]; Matter of Langdon, 43 Misc 3d 1214 (A) [Sur Ct, Nassau County 2014]).
The attorneys are directed to contact the calendar department to schedule examinations pursuant to SCPA 1404.
This is the decision and order of the court.
Dated: February 27, 2015
EDWARD W. McCARTY III
Judge of the
Surrogate's Court