There is offered for probate as decedent’s last will and testament an instrument in his own hand in the following text: “This is my will if I should die on this my trip to India You are my sol heiress.”
A New York Probate Lawyer said that the objections to the probate of this document were interposed by decedent’s widow and his brother. Their objections asserting fraud, undue influence and lack of testamentary capacity were withdrawn prior to the trial so that the only remaining issues as to the validity of the paper’s execution as a will are those asserting that the instrument was not duly published by decedent and that he did not request the witnesses to attest it.
A New York Will Lawyer said a motion was made by the widow for a summary judgment that the propounded paper was subject to a condition which never occurred and consequently the instrument never became effective as the decedent’s will. It was urged in support of this motion that the propounded paper was intended to be operative only in the event of decedent’s death on a particular trip to India and, inasmuch as he did not make a trip to India and died in July 1954 in a New York City hospital, the instrument should not be admitted to probate. The court ruled that the motion for denial of probate would be held in abeyance for determination with other issues upon the trial. The Court of Appeals affirmed the order of this court and held that the effect of the alleged condition upon the validity of the propounded paper should be determined on the trial of the probate or other hearing at which the parties would have an opportunity to develop extrinsic facts in aid of a construction of the testator’s language. In accordance with this holding the parties have been permitted to introduce evidence in support of their respective contentions as to the validity and effect of the propounded paper.
Manhattan Probate Lawyers said the question as to whether or not the propounded paper is a duly executed testamentary instrument is of first importance inasmuch as a negative answer would deprive the proponent of any further status in the estate and also would render construction of the paper unnecessary.
New York City Probate Lawyers said the fundamental purpose of the statutory requirement of publication is to prevent fraud and it has been said that the reasons for requiring publication are two-fold; first, to assure that the testator is under no misapprehension as to the nature of the instrument he is executing and second, to impress upon the witnesses the importance of their act and their consequent duties to vouch for the validity of the instrument. Here the instrument is a holograph, the body of which opens with the words ‘This is my will’. There can be no doubt of the testator’s awareness of the nature and purpose of this instrument in his own hand. He orally identified the instrument to one of the witnesses, he requested her to witness it and he asked her to procure the subscription of the other witness. The nature of the instrument was conveyed to the second witness and she then subscribed her name below that of the first witness in the presence of the testator. It is perfectly clear that the testator was fully aware of what was occurring and that these acts of subscription were not only with his acquiescence but were completely in accord with his wishes. It also has been established that both witnesses were cognizant of the nature of the instrument and the function they were performing in attesting it.
There is no requirement that a testator’s publication of his will be in a particular form and both a declaration of the character of the instrument and a request that the witnesses act may be communicated by signs and conduct as well as by words. Accordingly it is found that statements and events contemporaneous with the execution of the instrument established that the testator conveyed to both the witnesses the fact that the instrument was his will and his request that they sign the instrument as witnesses. It is held that the propounded paper was duly executed in accordance with Decedent Estate Law, § 21. The competency of the decedent to make a will and his freedom from restraint also having been established, the paper is entitled to probate under Surrogate’s Court Act, § 144.
The evidence established the facts hereinafter narrated. The testator and the proponent became acquainted in March 1953 and thereafter their relationship was a close one. Prior to the date of the will the proponent had lent the testator $7,500, a substantial part of which she had procured by pledging jewelry, and at the date of the will the testator had not repaid the loan. The testator expressed great concern about this obligation and his inability to satisfy it. Some hours before the execution of his will the testator, with money borrowed from another source, had purchased a ticket for airplane passage from New York to Bombay, India, and had procured a reservation for a flight scheduled to leave New York at 5 P.M. on February 23, 1954.
In February 1954 the testator’s wife verified a complaint in an action for divorce in the State of California. That complaint alleged that the parties had married in September 1947 and had separated in January 1953. The complaint further alleged that a property settlement agreement then was in the contemplation of the parties.
The motion to dismiss the objections of the testator’s widow was made by the proponent who under the foregoing construction of the will has no interest in the estate. The testator’s brother has not attacked the status of the widow and inasmuch as he would be the only person to benefit were the widow to be deprived of an intestate share no purpose is to be served by a consideration of the issues raised by the proponent’s motion. Accordingly the motion is dismissed.
The application of the widow for letters of administration has been opposed in the answer of the testator’s brother solely upon the ground that a corporate fiduciary would serve the interests of the estate in a more efficient and competent manner. This answer does not allege a statutory basis for denial of letters of administration to the surviving spouse who has a prior right to administration under Surrogate’s Court Act, §§ 118 and 133.
Probate proceedings of a last will and testament will make the provisions of the will effective. Here in Stephen Bilkis and associates, our New York Probate attorneys will bring the will in court and guide the executor on what to do during the proceedings. We also have our New York Estate lawyers who will draft your last will and testament in accordance with what the law requires.