A foreign will is a will that is executed in another state or another country. A foreign will can be admitted to probate in New York. The will must be executed either in conformance with New York requirements for valid wills (governed by EPTL §3-2.1), the laws of the jurisdiction where the will was executed, or the laws of the jurisdiction where the testator was domiciled (EPTL § 3-5.1).
What Are The Requirements For a Valid Will in New York?
EPTL § 3-2.1 governs the due execution of wills in New York. The elements of due execution are that:
- The testator signed at the end of the document;
- The testator signed in the presence of each attesting witness;
- The testator declared to each attesting witness that the document is his/her will; and,
- At least two attesting witnesses who sign the document at the testator’s request.
The procedure for the execution and attestation of a New York will does not to take place in a particular order, as long as the formalities are observed to the satisfaction of the Surrogate.
When Can A Foreign Will Be Admitted To Probate In New York?
EPTL § 3-5.1(c) sets forth the rules for wills having relation to another jurisdiction other than New York and states.
(c) A will disposing of personal property, wherever situated, or real property situated in this state, made within or without this state by a domiciliary or non-domiciliary thereof, is formally valid and admissible to probate in this state, if it is in writing and signed by the testator, and otherwise executed and attested in accordance with the local law of:
(1) This state;
(2) The jurisdiction in which the will was executed, at the time of execution; or
(3) The jurisdiction in which the testator was domiciled, either at the time of execution or of death.
In plain English, this means that if a foreign will is executed in compliance with New York law requirements, the will can be admitted to probate in New York. If the foreign will was executed in compliance with the laws of the state or country in which the will was executed, at the time it was executed, then the will can be admitted to probate in New York. Finally, if the foreign will is executed in compliance with the laws of the jurisdiction in which the testator lived, either when the will was executed or when the testator died, the will can be admitted to probate in New York.
Can A Will Written In Another Language Be Admitted to Probate In New York?
Yes. There is no requirement that a will must be written in English in order to be admitted to probate in New York. In the 2019 case, Matter of Fondacara, the surrogate’s Court, Kings County, considered a will written in Italian and executed in Italy. The foreign will was offered with a translation into English. The translation indicated that the testator and two witnesses were present at the execution and stated:
[The testator] requests me to write her last will and testament in public form, and to that end, in the presence of the witnesses, she declared her last will that is therefore drawn by me as follows: ‘I appoint my heirs in equal parts my brother Antonio Fondacaro and my nephews Aldo Fondacaro, son of Antonio, and Russel Ruggiero, son of my sister, Sarina.’
In considering the due execution of the propounded foreign will, the New York probate court stated:
Here, the propounded instrument indicates that the testator requested Mr. Mazzu to hand-scribe her last will and testament; to witness her execute the document before the two witnesses; to witness the two witnesses sign the document; and to sign the document himself as a notary public. It is clear, therefore, that Mr. Mazzu was acting in a capacity beyond that of a notary public at the execution ceremony. Further, where witnesses are deceased or unavailable, the court may in its discretion dispense with their testimonies. In re Will of Swenson, 3 Misc 2d 239 (Surr. Ct., Nassau Cty. 1956). Accordingly, the court dispenses with the testimony of the two witnesses and accepts Mr. Mazzu’s testimony as that of a competent attesting witness.
The court further discussed the statutory requirements for due execution, stating:
The statutory requirements for due execution were designed to prevent fraud. However, the beneficial purpose of the statute “should not be thwarted by an unduly strict interpretation of its provisions.” In re Will of Kobrinsky, 51 Misc 2d 222, 222-223 (Surr. Ct., Kings Cty. 1966). This is particularly the case where the entirety of the circumstances and the evidence presented bear no suspicion of fraud. Id. Moreover, even where the testimony of a witness is unavailable, unreliable due to poor memory, or even contradictory to another witness’s testimony, due execution may be established “upon proof of the handwriting of the testator, and of the subscribing witnesses, and also of such other circumstances as would be sufficient to prove the will upon the trial of an action.” In re Estate of Bright, 20 Misc 2d 789, 189 N.Y.S.2d 234, 1959 NY Misc. LEXIS 3446 (Surr. Ct., Nassau Cty. 1959), aff’d, 12 AD2d 745 (1st Dep’t 1961).
The court determined that the foreign will was duly executed, and the will was admitted to New York probate. This case did not involve a will contest. If the due execution had been challenged, it likely would have been more difficult to obtain probate of the foreign will.
