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Court Decides if a Will Was Properly Executed- In re Levine’s Will, 149 N.Y.S.2d 843 (N.Y. Surr. Ct. 1954)


The issue before the Surrogate’s Court is whether a will was properly executed.  New York estate law requires that in order for a will to be valid, it must meet certain technical requirements related to execution. That is the requirement now, and it was also the requirement decades ago when the will at issue in this 1954 Surrogate’s Court case was executed.

Decedent Estate Law, § 21 provides that in order for a will to be valid, there are 4 requirements related to execution: 1.  The will must be signed by the testator at the end.  2.  The testator must sign the will in the presence of two attesting witnesses.  Otherwise, the testator must acknowledge to the witnesses that he signed the will.  3.  At the time that he signed the will or acknowledged that he signed the will, the testator must also declare to the witnesses that the document that he signed was indeed his last will and testament.  4.  The two attesting witnesses must also sign the will at the end.

In the case of In re Levine’s Will, the court had to decide if the second requirement was met that the decedent signed her will in the presence of two witnesses, or acknowledged to the witnesses that the signature on the will was indeed hers.  One of the witnesses, Glackman, was not present when the decedent, B. Levine, signed her will.  Therefore, in order for the execution of the will to be compliant with the statute, the decedent must have acknowledged to Glackman that she did actually sign the will.  Levine did not do this.

However, the petitioner and proponent of the will, Nitsberg, argues that even though the decedent did not sign or acknowledge the will in the presence of Glackman, she did declare in the presence of Glackman that the document was in fact her will.  Nitsberg argues that this was sufficient to meet the technical requirements of the statute.  In other words, Nitsberg contends that because requirement two and three are to be completed at the same time, as long as the one of these two requirements was met, the will was properly executed.

The Surrogate’s Court disagreed with Nitsberg.  The fact that the decedent complied with the requirement of one of the subdivisions of Decedent Estate Law, § 21, does not automatically mean that the decedent complied with the requirement of another subdivision of Decedent Estate Law, § 21. The court went on to note that this is particularly true in this case where the signature was in a foreign language and the Glackman, the witness, was not able to read that language.

The result of the will not being properly executed was that the Surrogate’s Court denied Nitsberg’s petition to probate that will. When probate is denied, the court will either probate a prior valid will, or the court will order the decedent’s estate to be distributed as in intestate estate.



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