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Court Decides if Signature on Will is Proper


A New York Probate Lawyer said that, in this contested probate proceeding, the Court determines that the propounded instrument was not executed as required by Decedent Estate Law, § 21. This statute requires by subdivision 2 thereof, that decedent’s subscription of the instrument shall be made in the presence of each of the attesting witnesses or shall be acknowledged by him to have been so made to each of such witnesses. By subdivision 3 thereof, the statute requires the decedent to declare that the instrument subscribed by him was his last will and testament. Compliance with only one of these requirements may not be urged to constitute compliance with the other.

Since the decedent did not subscribe her name in the presence of the witness, it was necessary that she acknowledge such signature to this witness. This she did not do. The fact that decedent may have declared the instrument to be her will, as required by subdivision 3, does not serve as a compliance with subdivision 2. In re Banta’s Will, 204 Misc. 985, 128 N.Y.S.2d 334. This is especially so where, as here, the appended signature is in a foreign language which the witness cannot read.

Accordingly, the Court finds that decedent did not subscribe the instrument in the presence of the two attesting witnesses and did not acknowledge such subscription to be her signature to said witnesses as required by the statute. The objections are sustained and probate is denied. Proceed accordingly. As an incident to a trustee’s final accounting, the Court is requested to fix an attorney’s fee pursuant to section 231-a, Surrogate’s Court Act payable out of the share of the issue of a deceased remainder man.

In another case, the testator died October 10, 1946, a resident of Kings County leaving an instrument dated June 26, 1946 which was offered for probate. Objections thereto were interposed in behalf of remainder men of a trust, created under an earlier testamentary instrument, and by the testator’s distributees, one of whom, retained the petitioner. He agreed to pay petitioner a fee based on a percentage of any benefit and executed an assignment therefor which was recorded.

On May 1, 1948, an agreement of compromise was entered into, pursuant to which the propounded instrument was admitted to probate on February 19, 1949. By the terms of the agreement, on the termination of a trust created thereunder, the corpus was to be distributed to seven named remainder men or should any of them die before the trust’s termination the share of such person was to pass to his issue per stirpes. The compromise agreement likewise provided that each and all of such shares of the remainders shall be, and shall remain, subject to the lien or liens of the attorneys for each respective remainder man for legal services rendered to each. The trust terminated on October 26, 1958 upon the death of the surviving life beneficiary thereunder. The remainder man, died May 28, 1954 survived by one son, who died February 22, 1955 survived by his daughter, who will be the recipient of the share of said reminder man and from whose interests in the remainder the fee is sought. While the issue of the signatories to the agreement were not parties to it, the agreement endured to the benefit of such issue whose ancestor predeceased the termination of the trust and the ancestor intended to and did bind not only himself but his personal representatives and any issue succeeding to his rights under the agreement. The Court determines that the attorney has a lien for his stipulated compensation on the moneys distributable to the granddaughter of the remainder man and directs that such attorney’s requested fee be considered a lien thereon and be paid from such share. Settle decree on notice.

If the will of the decedent is defective, seek the help of an experienced lawyer from Stephen Bilkis and Associates in order to file an opposition on the probate of the will.

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