Published on:

Probate Court Interprets Holographic Instrument

A New York Probate Lawyer said that sources show that the complainant offers for probate a holographic instrument, 2-1/4 3-3/4 inches in size, written upon both sides thereof. The decedent’s signature appears directly below the dispositive provisions with no space for any other signatures below it. The first witness’s signature is on the right-hand side of the paper parallel to the edge thereof approximately at a right angle to the decedent’s signature and followed by the word ‘witness’; the other witness’s signature appears immediately thereafter at a right angle to the first witness’s signature on the side of the paper opposite decedent’s signature. This witness’s signature is inverted in relation to decedent’s signature and preceded by the word ‘witness.’

The question submitted before the court is whether the witnesses signed ‘at the end’ of the propounded instrument is in accordance with the requirements of section 21(4) of the Decedent Estate Law.

A New York Estate Lawyer said that the Court ruled that, Section 21 of the Decedent Estate Law was designed to prevent fraud and its beneficial purpose should not be thwarted by an unduly strict interpretation of its provisions, especially where there is no opportunity for a fraud to have been perpetrated. As stated in the Field case, ‘Form should not be raised above substance, in order to destroy a will, and the substantial thing in this case is a paper which reads straightforward and without interruption from the beginning to the end, and when thus read the signature is found at the end.’

A Queens Probate Attorney said the court is satisfied that by the propounded paper, which is informally drawn, the decedent intended that it be his last will and testament. He was familiar with the basic requirements for the execution of a will and aware that his signature had to be witnessed. There not being sufficient space below or to the sides of decedent’s signature on the small piece of paper, the witnesses, of necessity, were forced to affix their signatures in the only spaces available on the paper. Under the circumstances indicated in this proceeding, a rigid construction of section 21 is not resorted to since there was no possibility of fraudulent additions to the instrument. The law affords the right of testamentary disposition, and a decedent’s wishes where clearly stated should not be thwarted unless clearly required. The court is further satisfied that the witnesses to this instrument signed in the only spaces available with intent to witness decedent’s last will and testament in substantial compliance with section 21 of the Decedent Estate Law.

The genuineness of the instrument, the validity of its execution and the competency of the decedent all having been proven to the court’s satisfaction, the instrument will be admitted to probate.

Long Island Probate Lawyers said that according to sources, a petition for the probate of a will may be presented by (a) any person designated in the will as legatee, devisee, fiduciary or guardian or by the guardian of an infant legatee or devisee or the committee of an incompetent legatee or devisee, or the conservator of a legatee or devisee who has been designated a conservatee pursuant to article seventy-seven of the mental hygiene law; (b) a creditor or any person interested or any person entitled to letters of administration with the will annexed under 1418; (c) any party to an action brought or about to be brought in which action the decedent, if living, would be a party; (d) the Public Administrator or County Treasurer on order of the court, where a will has been filed in the court and proceedings for its probate have not been instituted or diligently prosecuted. 2. Contents of petition. The petition for probate shall allege the citizenship of the petitioner and the testator and shall describe the will being offered for probate and any other will of the same testator on file in the court and shall set forth the names and post-office addresses so far as they can be ascertained with due diligence of all of the persons required to be cited and all of the legatees, devisees and fiduciaries named in the will or any other will so filed. 3. Direction of court. (a) Where a petition for probate has been filed and the proceeding has not been diligently prosecuted the court may direct the Public Administrator or County Treasurer or authorize any party to take such steps as may be required to bring the proceeding to a decree. (b) Where necessary, the court shall determine the text or tenor of the will as admitted to probate and may incorporate the will or any part thereof in the decree.

Stephen Bilkis & Associates, with offices throughout New York, provides legal assistance in cases involving estate administration, estate litigation, will contest and the likes. They have their Kings County Estate Lawyers, or its New York Probate Attorneys who are willing to hear and assist any legal problem you may have involving matters of the estate.

Contact Information