Opinion
2019-3331
06-17-2021
Probate Proceeding Will of DOMENICA L. RUSSO, Deceased.
Scott M. Sherman, Esq. Walsh & Amicucci, LLP Attorneys for the Petitioners
Unpublished Opinion
Scott M. Sherman, Esq. Walsh & Amicucci, LLP Attorneys for the Petitioners
PRESENT: HON. MARGARET C. REILLY
DECISION AFTER HEARING
HON. MARGARET C. REILLY JUDGE
The following papers were considered in the preparation of this decision:
Petition . . .................................................................................................................. 1
Death Certificate. . ..................................................................................................... 2
Affidavit of Comparison and Instrument.. ................................................................... 3
Affidavits of Attesting Witnesses after Death (2) ......................................................... 4
Supplemental Affidavits of Subscribing Witnesses (2).. ................................................ 5
Attorney Affirmation Explaining Irregular Execution & Exhibits..................................... 6
Before the court is an uncontested proceeding for the probate of an instrument alleged to have been signed by Domenica L. Russo (decedent). In a decision, dated December 30, 2019, this court indicated that it could not determine whether the execution of the proffered instrument met the formal requirements of EPTL 3-2.1, without a hearing. The hearing was conducted by Surrogate Margaret C. Reilly on March 2, 2020.
BACKGROUND
The decedent died at the age of 94 on June 27, 2019, a resident of Nassau County. Her husband predeceased her and she was survived by three children: Anthony D. Russo; Daniel E. Russo; and Barbara Ann Russo, all of whom are the co-petitioners and nominated co-executors named in the instrument. The court file contains affidavits of attesting witnesses after death and supplemental affidavits made by the witnesses as well. Also included in the court file is an affirmation by the attorney who drafted the instrument presented to the court.
There were multiple irregularities in the execution of the instrument. This instrument is not dated. The witnesses, who executed the affidavits after death did not sign the instrument on the same page where the decedent's signature appears. The affidavit of attesting witnesses annexed to the instrument is also not dated, although signed by the two witnesses. The affidavit of attesting witnesses left blank the state and the county. Counsel for the petitioners affirmed that he drafted the instrument, however, the execution was supervised by a friend of the family, Theodore Pollock, Esq., whose name appears hand written on the affidavit of attesting witnesses. Although it appears that Mr. Pollock notarized the affidavit of attesting witnesses, the notary stamp does not reveal the year that his commission expires. Mr. Pollock's jurat on the self proving affidavit indicates the affidavit of attesting witness was executed on April 4, 2014. However, counsel for the petitioners set forth in an affirmation that Mr. Pollock at the age of 80 years old, died in 2012 and, therefore, the date could not have been April 4, 2014. The petitioner's attorney further sets forth that he believes upon information and belief that the instrument was signed on April 4, 2011, because it is the date that the decedent executed an instrument dividing a trust.
TESTIMONY
Testimony of Micheline Lumkwitz, Witness
Testimony at the hearing was given by Micheline Lumkwitz, one of two witnesses to the will execution. Ms. Lumkwitz testified that she signed the will offered for probate as a witness to the execution, and although she remembered that the will ceremony was conducted in the springtime, she could not remember the exact date. She further testified that her signing of the will occurred in the presence of: the decedent; Pauline Clarke, who was also a witness; Mr. Pollock; and Anthony D. Russo. Ms. Lumkwitz testified that she saw the decedent sign the will, and that all of the other persons mentioned above were present when the decedent signed the will in the kitchen of her cottage, which was located at the back of the home of her son, Anthony D. Russo. The witness also testified that she knew the instrument was the decedent's will because Mr. Pollock stated so, and he asked Ms. Lumkwitz to sign the will as a witness. According to the testimony offered by Ms. Lumkwitz, she also saw Pauline Clarke sign the will, as she was sitting next to Ms. Lumkwitz at a table when Ms. Clarke signed it. In response to questioning, Ms. Lumkwitz stated that the decedent was over 18, of sound mind, able to speak English, and that she signed one copy of the will. The decedent and Ms, Lumkwitz knew each other because Ms. Lumkwitz took care of the decedent's grandchildren and currently works for the decedent's son, so that they would see each other at least once a week.
Testimony of Pauline Clarke, Witness
Pauline Clarke, who worked as an aide caring for the decedent, was the second witness, and she provided additional testimony. She identified her signature on the document, although she could not remember the date it was signed. She also testified that the decedent signed the will in her presence and in the presence of Ms. Lumkwitz, Mr. Pollock and Anthony D. Russo. According to Ms. Clarke's testimony, she and Ms. Lumkwitz were seated, along with the decedent. Ms. Clarke testified that she saw the decedent sign the will and she saw Ms. Lumkwitz sign the will, all in the same room. She knew it was a will because Mr. Pollock told her so, and the decedent read the will. According to Ms. Clarke, the decedent asked her to act as a witness while the lawyer provided additional information. The witness testified that the decedent was over the age of 18, in her right mind, and she was not blind, deaf or unable to write.
Memorandum of Law
Following the hearing, counsel for the petitioners provided a memorandum of law in support of the court's acceptance of the propounded instrument for probate.
LEGAL ANALYSIS
EPTL § 3-2.1 provides the formal requirements for the execution and attestation of wills and reads in relevant part as follows:
"(1) It shall be signed at the end thereof by the testator or, in the name of the testator, by another person in his presence and by his direction, subject to the following . . . .
(2) The signature of the testator shall be affixed to the will in the presence of each of the attesting witnesses, or shall be acknowledged by the testator to each of them to have been affixed by him or by his direction. The testator may either sign in the presence of, or acknowledge his signature to each attesting witness separately.
(3) The testator shall, at some time during the ceremony or ceremonies of execution and attestation, declare to each of the attesting witnesses that the instrument to which his signature has been affixed is his will.
(4) There shall be at least two attesting witnesses, who shall, within one thirty day period, both attest the testator's signature, as affixed or acknowledged in their presence, and at the request of the testator, sign their names and affix their residence addresses at the end of the will. There shall be a rebuttable presumption that the thirty day requirement of the preceding sentence has been fulfilled. The failure of a witness to affix his address shall not affect the validity of the will."
In Matter of Falk, the court addressed the proponent's burden to satisfy the court that a will filed for probate is valid and was duly executed. The court stated the following:
"Surrogate's Court, before admitting a will to probate, must be satisfied that the execution of the will was valid, even if no interested party files an objection of its validity and the burden of demonstrating that the purported will was duly executed lies squarely with the proponent, who must prove such by a preponderance of the evidence. Where the attorney-draftsperson supervises the execution of a will, a presumption of regularity arises that the will was properly executed in all respects" Matter of Falk, 47 A.D.3d 21 [1st Department 2007] [internal citations omitted]; see also SCPA 1408).
Although typically the will execution is supervised by the attorney/drafter, the presumption of due execution may attach even where the supervising attorney did not draft the will (see, e.g., Matter of Mery Su Ling Chin, 2015 N.Y. Misc. LEXIS 3455 [Sur Ct, Queens County]). Moreover, a self-executing affidavit of the attesting witnesses creates a presumption that the will was duly executed (see, Matter of James, 17A.D.3d 366 [2nd Dept 2005]).
The clear testimony offered at the hearing by both witnesses was that the testator, Domenica L. Russo, signed the instrument in their presence and declared the instrument to which her signature has been affixed to be her will and that the execution was supervised by an attorney, Theodore Pollock. The testimony indicates that there was compliance with EPTL3-2.1 (1), (2) and (3).
The remaining issue for this Court is whether the execution was in compliance with EPTL3-2.1 (4), despite the fact that the attesting witnesses failed to sign the will in the space provided following the attestation clause. Instead, the witnesses signed an undated "Affidavit of Attesting Witnesses" which had an incorrect notarization date.
The court notes that in addition to the testimony provided at the hearing as described above, each witness signed an affidavit of attesting witness and a supplemental affidavit of subscribing witness as part of the documents supporting the petition to admit the will to probate. Each witness describes the will ceremony, including the fact that each witness signed her name immediately after seeing the decedent sign the will under the supervision of an attorney.
Where the witnesses' signatures do not follow the attestation clause but are instead located on the self-proving affidavit attached to the will, the presence of those signatures meets the requirements of EPTL 3-2.1 for due execution (Matter of DiVittorio (2018 NY Slip Op. 32753(U) [Sur Ct, Nassau County 2018]; Matter of Zurachino (148 Misc.2d 707 [Sur Ct, Nassau County 1990]).
There is no requirement under EPTL 3-2.1 that a will must be dated to be duly executed (Matter of Dujenski, 147 A.D.2d 958 [4th Dept 1989]). In Dujenski, the Appellate Division reversed a decision by a Surrogate in which a will was invalidated based upon a lack of proof of the date when it was signed. The Appellate Division noted that "[t]here is no requirement that either the will or the testatrix's signature be dated."
While there is a requirement that the witnesses sign their names within 30 days of each other, EPTL 3-2.1 (A) (4) provides a rebuttable presumption that this requirement has been fulfilled. In addition to this presumption, the court has the sworn testimony and multiple affidavits of the two witnesses attesting to the fact that each witness signed as requested by the decedent immediately after she executed her will, and on the line shown to them by the supervising attorney.
Based upon all of the documentary evidence and the witness testimony, and there being no opposition, the court finds that there is sufficient proof of compliance with all of the requirements of EPTL 3-2.1and the petition to probate the will is GRANTED.
Letters testamentary shall issue to the nominated co-executors, Anthony D. Russo; Daniel E. Russo; and Barbara Ann Russo, upon their duly qualifying.
Submit decree within sixty (60) days of the date of this decision. Failure to submit the decree as directed may result in the proceeding being deemed as abandoned (see 22 NYCRR 207.37).
This constitutes the decision of the court.