Proof of Wills: Issues Concerning Due Execution and Interested Witnesses, by Paul T. Shoemaker
By Paul T. Shoemaker
Recent judicial decisions underscore the need to have wills prepared by, and executed under the supervision of, lawyers who are experienced in such matters. It is, of course, essential to have a proper will-signing ceremony, but other dangers lurk beneath the surface, particularly problems presented by the use of interested witnesses.
This article examines cases which have dealt with issues that arise when (a) the will execution ceremony is not conducted properly, or cannot be shown to have been conducted properly, or (b) one or more of the attesting witnesses is “interested.”
Proof of Proper Execution of a Will
Section 3-2.1 of the Estates, Powers and Trusts Law (EPTL) sets forth the requirements for the due execution of a will. In order to prove the due execution of a will, it must be shown that there was substantial compliance with the following:
1. The signature of the testator was affixed by him or her (or by another person in the testator’s presence and at his or her direction) at the end of the instrument;
2. The testator declared the instrument to be his or her will;
3. Each of the witnesses signed the instrument as a witness at the testator’s request;
4. The testator signed the will in the presence of the witnesses or acknowledged to each of the witnesses that the signature appearing at the end of the instrument was his or her signature; and
5. There were at least two attesting witnesses, and they signed as witnesses within 30 days of each other.
Sections 1405 and 1406 of the Surrogate’s Court Procedure Act (SCPA) set forth special rules applicable to proof of due execution of a will.
Section 1405, subdivision 1, provides that, where an attesting witness is unavailable by reason of death, absence from the state or incompetency, the court may dispense with the testimony of such attesting witness and admit the will to probate based upon the testimony of the other attesting witness.
Subdivision 3 of §1405 provides that, where an attesting witness has forgotten the occurrence or testifies against the execution of the will, the court may still admit the will to probate if there is at least one other attesting witness whose testimony provides evidence of such facts as would be sufficient to prove the will.
In the event that all of the attesting witnesses are unavailable, the will may nevertheless be admitted to probate under subdivision 4 of §1405 upon proof of the handwriting of the testator and of at least one attesting witness and “such other facts as would be sufficient to prove the will.”
Next, §1406 of the SCPA provides that the attesting witnesses may submit affidavits stating such facts “as would if uncontradicted establish the genuineness of the will, the validity of its execution and that the testator at the time of execution was in all respects competent to make a will and not under any restraint.” Such affidavits must be accepted by the court as evidence of due execution unless an objection is made. Thus, if there is no objection, a will may be admitted to probate based on affidavits, and the live testimony of the attesting witnesses need not be taken.
In addition, pursuant to case law, there is a presumption of due execution of a will if the execution of the will was supervised by an attorney. (The presumption, however, does not arise when the supervising attorney was a substantial beneficiary under the will.) See, e.g., In re Kindberg.
The presence of an attestation clause (that is, a paragraph which recites compliance with the statutory requirements and which has been subscribed by the attesting witnesses) also is helpful to the proponent of a will. The presence of a complete attestation clause has been held to create a presumption of due execution.
The aforementioned statutory and case law provisions give aid and comfort to the party attempting to establish the due execution of a will. On the other hand, §3-3.2 of the EPTL can be a trap for the unwary. Section 3-3.2 provides that an attesting witness to a will to whom a beneficial disposition or appointment of property is made is a competent witness to testify concerning the execution of the will; provided, however, that the disposition or appointment made to such attesting witness will be void unless there were, at the time of execution and attestation, at least two other attesting witnesses to the will who received no beneficial disposition or appointment thereunder.
Subdivision (a) (3) of §3-3.2 provides an exception to forfeiture for an attesting witness who would be a distributee if the will were not established. Such an attesting witness whose testimony is necessary to establish the will remains entitled to receive so much of his or her intestate share as does not exceed the value of the disposition made to him or her in the will.
Application of the Requirements of Due Execution in Recent Cases
In In re Halpern, the Court was confronted with a will which had been executed almost 50 years earlier, on September 12, 1958. The decedent died in 2006 and the only surviving attesting witness was deposed in 2007.
The attesting witness testified that she had no memory of the events of September 12, 1958. She acknowledged her signature on the document, however, and handwriting experts authenticated the signatures of the decedent and of the attorney who had supervised the execution of the will.
The Appellate Division, relying upon the presumptions created by the fact that the will execution ceremony had been conducted under the supervision of an attorney, and that the will contained an attestation clause, affirmed the decision of Surrogate Glen, who had granted the proponents’ motion for summary judgment and admitted the will to probate.
The majority found that the testimony of the attesting witness, even though it failed to show that the required formalities had taken place, was insufficient to overcome the presumptions established by the attestation clause and the fact that the will was executed under an attorney’s supervision. The majority stated that the attesting witness’s testimony had to be read “in context” and was properly interpreted as testimony to the effect that she could not confirm the statements made in the attestation clause because she did not remember an event which had taken place almost 50 years earlier.
The dissenting Justice, Justice McGuire, quoted the attesting witness’s testimony at length, noting in particular that the attesting witness testified that there had never been an occasion when she signed any document with a lawyer and the decedent in the same room at the same time. When pressed, she stated that she was confident that no such thing had ever occurred. She also testified that no one told her that the document she was signing was anybody’s will.
In addition, the dissenter attached significant weight to the fact that the attesting witness testified that she believed that she would remember if she had been asked to sign a will and that she had no recollection of any such event ever having taken place. In addition, although she acknowledged that she had signed the document, she said that she was very young (20 years old) at the time of the signing of the will, that the testator, her employer, was very controlling, and that, because of his controlling and manipulative nature, she believed she probably would have signed a document that was placed in front of her if he told her to sign it.
The dissenter did not conclude that the will should have been rejected as a matter of law based on the above testimony, but merely that summary judgment should have been denied and that the issue of the will’s validity should have submitted to a finder of fact.
As noted above, under SCPA 1405(3), where the testimony of an attesting witness is “against the execution of the will,” the will still may be admitted to probate upon the testimony of one of the other attesting witnesses. Here, however, there were no other surviving attesting witnesses who could provide testimony.
And, under SCPA 1405(4), if the attesting witness was simply unavailable to testify, the will could have been admitted to probate upon proof of the handwriting of the testator and of at least one of the attesting witnesses and of such other facts as would be sufficient to prove the will. In other words, if the attesting witness in the Halpern case had not been available to testify, the will probably would not have been cast into doubt.
The majority in Halpern did not address or discuss SCPA 1405, but avoided having to do so by relying on the presumptions arising from the attestation clause and the supervision of the will’s execution by an attorney.
How could the problems presented in Halpern have been avoided? If the attesting witness had been an employee of the draftsperson’s law firm, then even 50 years later, the witness most likely would have testified that she was often asked to witness wills and that the lawyers in her firm who supervised the executions of wills routinely asked the appropriate questions and conducted the ceremonies in compliance with statutory requirements.
In In re DiPasquale, the will had not been executed under the supervision of an attorney. Accordingly, there was no presumption of compliance with the statutory requirements for the proper execution of the will.
There were affidavits of the attesting witnesses setting forth compliance with the statutory requirements, but objections had been filed by a Guardian ad Litem. As a result, the court could not accept the affidavits as conclusive proof of due execution under SCPA 1406, and the testimony of the attesting witnesses was taken.
The court observed that the witnesses did not have “failed or imperfect memories” (in which case the application of §1405(3) of the SCPA might have been of assistance to the proof of the will), but that their testimony affirmatively contradicted due execution of the will and showed that the necessary formalities had not taken place.
First, their testimony failed to establish that the decedent had asked them to act as witnesses. Second, the testimony failed to establish that the decedent had made it known to the witnesses that the instrument they were being asked to sign was the decedent’s last will. The court therefore refused to admit the will to probate and revoked preliminary letters testamentary.
The DiPasquale decision vividly demonstrates the dangers of having a will executed without proper attorney supervision. In DiPasquale, the attesting witnesses all were accountants who had some familiarity with the formalities involved in the execution of a will. Nevertheless, the evidence established that those formalities had not in fact been fully observed.
The outcome in DiPasquale may be contrasted with the outcome in In re Pilon, where the attorney who supervised the will execution ceremony utilized secretaries employed by his firm as witnesses. Under such circumstances, the court held, it was possible and appropriate to infer that the required formalities were observed and that the testator did in fact ask the witnesses to sign as such.
In In re Stachiw, the court also refused to admit a will to probate on the grounds that it had not been properly executed. The attorney draftsperson had supervised the propounded will’s execution and, the court noted, a presumption of regularity that the will was properly executed therefore arose. Nevertheless, the court refused to admit the will to probate, finding that the objectants had submitted sufficient evidence to overcome that presumption.
The Stachiw case involved unusual circumstances because the testator was hospitalized and in “an extremely incapacitated condition.” Indeed, the attorney-draftsman acknowledged in his testimony that, during the one and one-half hours he was with the decedent in his hospital room, the decedent did not say a single word.
Moreover, the attorney utilized bystanders as attesting witnesses, including a janitor who testified: “I was cleaning the bathroom and I’m on my way out mopping the floor and someone says, would you witness the signature of this gentleman is putting on the piece of paper, and I said, sure, I’ll sign underneath, but that was it.”
The court credited the testimony of this attesting witness that the decedent did not publish his intention that the document serve as his will or in any way declare that the instrument he was signing was his will.
The court rejected “the attorney’s conclusory, self-serving assertions” that the decedent either signed the will in the presence of that witness or acknowledged his signature to the witness. The court concluded that the attorney had rushed through the execution process without giving due consideration to the decedent’s condition and “without proper regard for the particular prescribed requirements of will execution.”
The Stachiw case is unusual in that it shows that, where there is affirmative evidence to the contrary, even the supervision of a will execution by an attorney may not suffice to establish the validity of the execution of the will to the satisfaction of a court.
The Interested Witness Problem
In Estate of Maset, the court disregarded the terms of §3-3.2 of the EPTL in order to avoid forfeiture of a bequest to an interested witness.
In Maset, two of the three attesting witnesses were provided with bequests under the will. Section 3-3.2 requires forfeiture if there are not at least two witnesses to whom no disposition or appointment is made, and the determination of whether there is a disposition or appointment to an attesting witness must be made “at the time of execution and attestation.” Accordingly, a straightforward application of §3-3.2 would have required forfeiture of the bequests made to both witnesses. See, e.g., Estate of King.
A disclaimer, or a finding of forfeiture, with respect to a bequest to one witness is not sufficient to protect a bequest to a second witness if both witnesses were beneficiaries as of the time of the execution of the will. Nevertheless, the Maset court ruled that one beneficiary witness (Matthew Riddick, who was not a distributee) would not forfeit his bequest because the testimony of another beneficiary witness (Alicia Maset, a daughter of the decedent) would be accepted as the testimony of a second attesting witness (in addition to the testimony of the (third) non-beneficiary witness), and the disposition to Alicia Maset would be void.
The court in Maset expressed sympathy towards Matthew Riddick, stating that he should “not have to forfeit, through no fault of his own, the modest monetary bequest [$1,500] that the decedent wanted him to receive.” The court further noted that Alicia Maset could still receive the share that she would have received in intestacy (EPTL 3-3.2 (a) (3)).
The court did not, however, disclose whether that outcome would have any impact on the amount Alicia Maset ultimately would receive. The will provided for her to receive the entire residuary estate. Under the court’s ruling, however, she would forfeit one-half of the residuary because another daughter of the decedent also survived and, under the rules of intestate succession, the two sisters would each receive one-half of the residuary.
This raises the question of how the court decided to favor Matthew Riddick over Alicia Maset. It is true that, inasmuch as he was not a distributee, Matthew Riddick would have received nothing whatsoever if he had been required to forfeit his bequest. That, however, begs the question of how much Ms. Maset forfeited by reason of the court’s disallowance of the bequest to her. If the residuary estate was worth more than $3,000, then Alicia was impacted more severely than Matthew Riddick would have been had his bequest been deemed to have been forfeited.
While there certainly may be policy reasons why the forfeiture of a bequest to an interested witness is undesirable, those policy reasons are for the legislature to evaluate and act upon, not for the court to evaluate and act upon where the legislature has already spoken. Until and unless the legislature acts, decisions such as Maset would seem to be inappropriate.
It is unwise to rely on the possibility that a court will stretch the law to avoid an unintended forfeiture or to validate a will execution that was not conducted properly. The better approach clearly is for those who are intending to execute wills to retain counsel with substantial expertise in the area in order to avoid the pitfalls involved both in proving due execution of a will and in having interested parties act as witnesses to a will. Experienced counsel will follow the proper procedures and will utilize as witnesses employees of his or her law firm who have experience with such matters, thereby maximizing the likelihood that the will in question will be admitted to probate.
The Appellate Division for the First Department had occasion in 2007 to instruct the bar as follows:
In view of the above, we find it quite clear, and it should likewise be so to the bar, 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.
The cases discussed above demonstrate the soundness of the court’s guidance and the advisability of utilizing experienced counsel in connection with the preparation and execution of a will.
Paul T. Shoemaker is a partner at Greenfield Stein & Senior, LLP in New York City. Mr. Shoemaker has handled numerous contested probate proceedings.
 EPTL § 3-2.1. Execution and attestation of wills; formal requirements
(a) Except for nuncupative and holographic wills authorized by 3-2.2, every will must be in writing, and executed and attested in the following manner:
(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:
(A) The presence of any matter following the testator’s signature, appearing on the will at the time of its execution, shall not invalidate such matter preceding the signature as appeared on the will at the time of its execution, except that such matter preceding the signature shall not be given effect, in the discretion of the surrogate, if it is so incomplete as not to be readily comprehensible without the aid of matter which follows the signature, or if to give effect to such matter preceding the signature would subvert the testator’s general plan for the disposition and administration of his estate.
(B) No effect shall be given to any matter, other than the attestation clause, which follows the signature of the testator, or to any matter preceding such signature which was added subsequently to the execution of the will.
(C) Any person who signs the testator’s name to the will, as provided in subparagraph (1), shall sign his own name and affix his residence address to the will but shall not be counted as one of the necessary attesting witnesses to the will. A will lacking the signature of the person signing the testator’s name shall not be given effect; provided, however, the failure of the person signing the testator’s name to affix his address shall not affect the validity of the will.
(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.
(b) The procedure for the execution and attestation of wills need not be followed in the precise order set forth in paragraph (a) so long as all the requisite formalities are observed during a period of time in which, satisfactory to the surrogate, the ceremony or ceremonies of execution and attestation continue.
 SCPA § 1405. When court may dispense with testimony of witness
1. The death, absence from the state or incompetency of an attesting witness required to be examined as prescribed in this or the preceding section or the fact that the witness cannot with due diligence be found within the state or cannot be examined as an attesting witness by reason of his physical or mental condition may be shown by affidavit or by any competent evidence and when so shown to its satisfaction, the court may by the decree on probate or by order either in writing or entered in the minutes dispense with the testimony of such attesting witness. Where the testimony of an attesting witness has been dispensed with as provided in this section and 1 attesting witness has been examined the will may be admitted to probate upon the testimony of the attesting witness who has been examined without further or additional proof.
2. Where an attesting witness is absent from the state and it is shown that his testimony can be obtained with reasonable diligence the court may and shall upon the demand of any party require his testimony be taken by commission.
3. Where an attesting witness has forgotten the occurrence or testifies against the execution of the will and at least 1 other attesting witness has been examined, the will may be admitted to probate upon the testimony of the other witness or witnesses and such other facts as would be sufficient to prove the will.
4. If all of the attesting witnesses are dead or incompetent or unable to testify by reason of physical or mental condition or are absent from the state and their testimony has been dispensed with as provided in this section the will may nevertheless be admitted to probate upon proof of the handwriting of the testator and of at least one of the attesting witnesses and such other facts as would be sufficient to prove the will.
SCPA § 1406. Proof of will by affidavit of attesting witness out of court
1. In addition to other procedures prescribed for the proof of wills, any or all of the attesting witnesses to a will may at the request of the testator or after his death, at the request of the executor named in the will or of the proponent or the attorney for the proponent or of any person interested, make an affidavit before any officer authorized to administer oaths stating such facts as would if uncontradicted establish the genuineness of the will, the validity of its execution and that the testator at the time of execution was in all respects competent to make a will and not under any restraint. The sworn statement of a witness so taken shall be accepted by the court as though it had been taken before the court, unless:
(a) a party entitled to process in the proceeding raises objection thereto or
(b) for any other reason the court may require that the witness or witnesses be produced and examined.
2. For the purposes of making the affidavit referred to in this section, after the death of the testator, the exhibition to the witnesses of a court-certified photographic reproduction of the will shall be deemed equivalent to the exhibition to them of the original will.
 It is advisable to have the attesting witnesses execute affidavits contemporaneously with the execution of the will. This avoids the necessity of locating the witnesses at the time of death.
 207 N.Y. 220, 100 N.E. 789 (1912).
 See, e.g., In re Clapper, 279 A.D.2d 730, 718 N.Y. S.2d 468 (1st Dep’t 2001).
 EPTL § 3-3.2. Competence of attesting witness who is beneficiary; application to nuncupative will
(a) An attesting witness to a will to whom a beneficial disposition or appointment of property is made is a competent witness and compellable to testify respecting the execution of such will as if no such disposition or appointment has been made, subject to the following:
(1) Any such disposition or appointment made to an attesting witness is void unless there are, at the time of execution and attestation, at least two other attesting witnesses to the will who receive no beneficial disposition or appointment thereunder.
(2) Subject to subparagraph (1), any such disposition or appointment to an attesting witness is effective unless the will cannot be proved without the testimony of such witness, in which case the disposition or appointment is void.
(3) Any attesting witness whose disposition is void hereunder, who would be a distributee if the will were not established, is entitled to receive so much of his intestate share as does not exceed the value of the disposition made to him in the will, such share to be recovered as follows:
(A) In case the void disposition becomes part of the residuary disposition, from the residuary disposition only.
(B) In case the void disposition passes in intestacy, ratably from the distributees who succeed to such interest. For this purpose, the void disposition shall be distributed under 4-1.1 as though the attesting witness were not a distributee.
(b) The provisions of this section apply to witnesses to a nuncupative will authorized by 3-2.2.
 2010 N.Y. Slip Op. 06391 (1st Dep’t 2010).
 N.Y.L.J., Sept. 12, 2008, p. 29, col. 1 (Surr. Ct., Rockland Co.).
 9 A.D.3d 771, 780 N.Y.S.2d 810 (3rd Dep’t 2004).
 N.Y.L.J., Dec. 9, 2009, p. 25, col. 3 (Surr. Ct., Dutchess Co.).
 N.Y.L.J., Dec. 1, 2009, p. 29, col. 3 (Surr. Ct., Dutchess Co.).
 68 Misc.2d 716, 328 N.Y.S.2d 216 (Surr. Ct., N.Y. Co. 1972).
 Indeed, in 1998, in an article entitled Forfeiture of Bequest by Witness to Will, it was suggested that the legislature should reconsider the requirement that an interested witness must forfeit his or her bequest. The commentators noted that other jurisdictions do not have such a requirement and that it is not necessary for the forfeiture to be automatic. Instead, the forfeiture question could be decided by a judge or jury who could evaluate the credibility of the witness beneficiary. P. Valente & J. Palumbo, Forfeiture of Bequest by Witness to Will, N.Y.L.J., July 9, 1998, p. 3, col. 1.
 There may be occasions where a prospective testator is in such a condition that he or she simply cannot properly execute a will, regardless of the efforts and skill of counsel.
 In re Will of Falk, 47 A.D.3d 21, 28, 845 N.Y.S.2d 287, 292 (1st Dep’t 2007), lv. denied, 10 N.Y.3d 702, 854 N.Y.S.2d 103 (2008).