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Wills are required to be signed with a certain degree of formality, which must be scrupulously followed if the document in question is to be upheld as the deceased's Last Will and Testament.

A recent decision of New York's Appellate Division, First Department Appellate Court decision rejected a document offered as the decedent's Will because of the failure to fulfill certain simple statutory requirements. The case is Fashing v Hillel, __ A.D.3d __, __ N.Y.S.2d __, 2007 NY Slip Op 08774, (1st Dep't 2007)(Decided on November 13, 2007). The decision is a textbook lesson to those who might be inclined to be dismissive of these legal formalities.

The document in question was drafted by an attorney who testified that he was present when decedent signed it, but the decedent told him that she preferred to obtain the witnesses herself; he testified that he gave the decedent oral and written instructions about how a will should be witnessed.

The witnesses' accounts of the signing of the Will were contradictory. Faced with these conflicts, the court observed: "the circumstances surrounding the execution of the Will, garnered from the evidence proffered at trial, clearly do not preponderate in favor of petitioners. Indeed, the trial testimony, deposition testimony and various signed and/or sworn statements presents such varying accounts of what allegedly transpired that it is unclear what occurred." Accordingly, the document was rejected.

In conclusion, the court observed:

. . . we find it quite clear . . . that the best practice is to discourage clients from executing a will outside the attorney's office or, at the least, without the supervision of an attorney. However, if the client insists and/or the circumstances demand, the attorney should deliver a written memorandum to the client explaining the fairly straightforward formalities, in clear and simple terms, which must be observed. The client should be requested to sign and return the memorandum after the execution ceremony, acknowledging with some detail, that the instructions were followed. This simple procedure will, to a large extent, negate the need for a proceeding such as this and abrogate the possibility that a decedent's testamentary intent will be frustrated.

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