In Matter of Tsinopoulos, the Rockland County Surrogate’s Court once again showed that it is possible to defeat a New York will contest on summary judgment (which we’ve written about previously here and here), and gave a great primer of some of the basics of New York will contests.
The Facts of Matter of Tsinopoulos
Pat Tsinopoulos passed away in 2015, survived by her daughter (Petitioner) and her son (Objectant).
Petitioner found a will in a chest in decedent’s bedroom approximately one month after decedent’s death. The Will was a two-page pre-printed form with blanks for the testator to fill in. The Will leaves the bulk of the decedent’s estate to Petitioner, but for an $11,000 bequest to Objectant. Petitioner offered the will for probate.
Objectant challenged the Will on the following grounds: (i) the failure to adhere to proper execution formalities of EPTL 3-2.1 (ii) lack of testamentary capacity and (iii) fraud and undue influence. After discovery, Petitioner filed for summary judgment on her petition to probate the Will. Objectant opposed the motion, arguing that material issues of fact remain unresolved.
The undisputed material facts were as follows:
- Decedent went by herself to Key Bank and performed a will execution ceremony under the guidance of bank manager Patricia Hughes.
- Hughes did not remember decedent’s particular will execution due to the large number of will executions that she has supervised.
- Hughes described the standard procedure that she used whenever a client asked to have the execution of a will witnessed, which incorporated all of the elements for a valid will execution under New York law.
- The three attesting witnesses to Decedent’s will confirmed the salient points of Ms. Hughes’s description of her standard procedure, and recognized their signatures on the Will, though none of them recalled this particular will execution ceremony.
- Hughes recognized her notary stamp and signature.
Objectant argued that different handwriting on the first and second pages of the Will creates a disputed material fact because:
- The print and script handwriting on the first page of the two page Will appear to be of a different style than Decedent’s signature, suggesting that the neater print handwriting could be his sister’s handwriting.
- His sister had the motive and opportunity to replace the original first page of the Will with the current first page so as to limit his share of the estate to $11,000.
Petitioner denied having any role in preparing the Will or writing anything on the will. Petitioner affirmed that she provided the original document that she found in her mother’s bedroom to her attorney without making any changes or substitutions.
Basic Legal Analysis For New York Will Contests on Summary Judgment
This particular opinion offers a great overview of the basic analysis for summary judgment in a New York will contest. As stated by the court, “[w]ill challenges tend to be very fact-specific, but the legal analysis is straightforward.”
First, the proponent of the will must introduce facts showing both due execution and the competency of the testator.
To defeat the motion, the Objectant must either (1) identify material facts that contradict the showing on due execution or competence; or (2) identify material facts that tend to show undue influence, fraud and/or coercion.
The allegations must not be mere conclusions, but should be specific and detailed.
Execution Formalities For A Valid New York Will
Proof of due execution of a New York will requires a showing that the instrument was executed in substantial compliance with the requirements of EPTL 3-2.1. We have written about the requirements of EPTL 3-2.1 for a valid will in New York here.
The proponent of the will bears the burden of establishing the will was duly executed: that (i) it was signed by the testator at the end; (ii) the testator either signed in the presence of at least two attesting witnesses or acknowledged his/her signature to them; (iii) the testator declared to each of the attesting witnesses that the instrument was his/her will; and (iv) the witnesses signed at the testator’s request.
When Does The Presumption of Due Execution Of A Will Arise Under New York Law?
A presumption of due execution arises when a New York will is accompanied by an attestation clause.
Once a petitioner establishes the basic prima facie case of due execution under New York law, the objectant in the will contest must identify an infirmity to deny probate.
Are Handwriting Discrepancies Relevant To The Issue Of Due Execution of A Will?
Handwriting discrepancies on a will are not relevant to the issue of whether a will was duly executed under New York law. Instead, whether or not the basic testamentary formalities required by New York EPTL 3-2.1. were complied with is the critical inquiry in a will contest.
Is A Will Invalid in New York if A Witness Cannot Recall the Execution?
No, a will with an attestation clause is not invalid simply because a witness cannot recall the execution of the will. The presumption of due execution that results from an attestation clause is entitled to great weight.
Here, Petitioner annexed to her motion papers the relevant excerpts from the transcripts of the SCPA 1404 examinations of the three attesting witnesses and the bank manager/notary who supervised the execution. The bank manager’s testimony demonstrated that a typical will signing ceremony conducted by her substantially complied with the statutory requirements of EPTL 3-2.1.
The Will included an attestation clause duly executed by the three witnesses, each of whom recognized their own signatures. Therefore, Petitioner established her prima facie case of due execution.
Objectant challenged the presumption of due execution because the date in the testator’s signature block was crossed out and initialed. Objectant argued that “the crossed out date raises an issue of fact about whether the attestation clause is incomplete or inaccurate, and therefore, argues that a presumption of due execution does not apply.” He also pointed out that none of the witnesses recall the cross out. The court stated:
Whether or not the witnesses recalled the cross out is not significant, as “a mere failure of memory on the part of the witnesses shall not defeat a will, if the attestation clause and other circumstances are satisfactory to prove its execution.” Kellum, 52 NY 517 at 519. As the Court of Appeals noted in Kellum, “the fact that the preparation and execution of wills was of common and almost daily occurrence in the office (the clerk testifying that he witnessed as many as fifty), it is not unnatural or improbable that these witnesses would forget the circumstances attending the execution of such a will, after so great a lapse of time.”
Without other facts tending to disprove due execution, the cross out does not defeat the presumption raised by the valid attestation clause.
Testamentary Capacity In New York Will Contests
Objectant also raised an objection to the Will on the grounds of testamentary capacity. As summarized by the court:
The proponent of a will bears the burden of proving that at the time of execution, decedent understood three things in a general way: (i) the nature and extent of his/her property; (ii) the natural objects of his/her bounty; and (iii) the provisions of the instrument. See Matter of Kumstar, 66 NY2d 691 (1985). A testator enjoys a presumption of sanity and mental capacity. See Matter of Coddington, 281 A.D. 143 (3d Dept. 1952), aff’d 307 NY 181 (1954). Further, the capacity to execute a valid will is minimal, and lower than that required to execute most other legal documents or contracts.
Here, despite having raised the objection as to testamentary capacity, objector testified at his deposition that his mother was of sound mind, thereby defeating his will contest on this ground under basic New York law.
Undue Influence In New York Will Contests
Undue influence is perhaps the most common challenge raised to the validity of a will in New York. As summarized by the court:
To prevent probate of a will based on a claim of undue influence, an objectant must demonstrate, by a preponderance of evidence, a motive, opportunity and the actual exercise of influence so strong as to subvert the mind of the testator at the time of execution to the extent that, but for the “undue” influence, the testator would not have executed the instrument. See Matter of Fiumara, 47 NY2d 845 (1979). An objectant must establish that the influence exerted “amounted to a moral coercion” which “constrained the testator to do that which was against his free will and desire.” Matter of Walther, 6 NY2d 49, 53 (1959) (quoting Children’s Aid Soc. v. Loveridge, 70 NY 387, 394 (1877) (internal quotations omitted)).
Unbelievably, the objectant testified at his deposition that his sister could not have convinced their mother to do something she did not want to do, thereby torpedoing his claim of undue influence.
Offering A Fraudulent Document For Probate
Finally, objectant argued that Petitioner offered a fraudulent will for probate, pointing out that she had the motive and opportunity to substitute a different first page of the Will.
The New York Surrogate’s Court recognized that while substituting a page of the Will would certainly be a “massive fraud,” Objectant provided no evidence to support this suggestion, while Petitioner affirmed that the Will submitted was the original instrument that she discovered in decedent’s home.
Do I Need An Attorney To Prepare My Will?
This New York Surrogate’s Court cautioned that the problems raised by using a pre-printed form will can be avoided by using a lawyer, stating:
Finally, the Court notes that the issues raised by the use of a preprinted form will and supervision of execution by a non-lawyer should give potential users of these forms reason to pause. See Estate of Bochner, 119 Misc 2d 937 (Surr. Ct. Bx. Co. 1983) (noting that, “despite the simplicity of the form she utilized,” testator’s mistakes in filling it out “approached the brink of having her testamentary scheme fail due to statutory insufficiency.”). Many, if not all, of Objectant’s concerns would have been avoided had Decedent engaged an attorney to prepare her will and supervise its execution.
The New York Surrogate’s Court granted Petitioner’s motion for summary judgment, thereby denying the will contest, finding that the will was duly executed, the decedent possessed the basic requisite testamentary capacity, the will was not the product of undue influence, and that there was no evidence that Petitioner provided the Court with a fraudulent version of the will.