WHEN IT COMES TO WILL EXECUTION, IT’S ALL ABOUT THE FORMALITIES

First published in the December 2007/January 2008 issue of Women’s Bar News, A Publication of the Women’s Bar Association of the State of New York

The First Department recently affirmed the decision of the New York County Surrogate’s Court denying probate of the Will of Victoria Falk (the “Falk Will”) that was prepared by an attorney but witnessed in the attorney’s absence. (see Fashing v. Hillel, 2007 WL 3346723 (N.Y.A.D. 1 Dept.) 2007 N.Y. Slip Op. 08774).

The Will in question is that of 91 year old woman with no offspring who left the bulk of her $500,000 estate to her caregiver of 9 years. The testatrix’s niece and nephew objected to the probate of the Falk Will.

Three individuals allegedly witnessed the signing of the Falk Will by the testatrix at the end of an attestation clause. However, when questioned, the witnesses contradicted themselves and each other and gave testimony that was inconsistent with the testimony of the attorney who claims to have witnessed the execution of the Will by Victoria Falk. Significantly, at least some of the witnesses 1) did not see the testatrix sign the Will; 2) did not see the other witnesses’ signatures on the Will; 3) did not know that they were signing as witnesses on a Will; and 4) did not know if the testatrix could read, write and converse in English despite the language in the attestation clause. In addition, none of the witnesses were asked by the testatrix to witness her Will and, one of the witnesses testified that he was told his signature was needed because he was being named as a beneficiary.

Since EPTL 3-2.1(a) provides, in pertinent part, that a Will must be in writing, signed at the end by the testatrix in the presence of the witnesses (or that the testatrix must acknowledge to the witnesses that she signed the Will) who have been told by the testatrix that the instrument being signed is her Will, it is clear that the statutory guidelines were not followed here. In fact, the problems with the execution of the Falk Will are so basic and pervasive that the Court took the unusual step of offering the bar unsolicited advice about what steps should be taken when a client insists on executing a Will without the attorney’s supervision. In addition to delivering “a written memorandum to the client explaining the fairly straightforward formalities, in clear an simple terms, which must be observed,” the Court urges attorneys to have their client “sign and return the memorandum after the execution ceremony, acknowledging with some detail, that the instructions were followed.” Since a client’s testamentary intent can only be honored if the Court finds the formalities set forth in the statute were followed, it is certainly in our best interests to take the Court’s advice to heart.

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