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Court Questions the Signing of a Will


Petitioner (executor) 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 is whether the witnesses signed ‘at the end’ of the propounded instrument in accordance with the requirements of section 21(4) of the Decedent Estate Law.

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. 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.

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.

As to the other objection of the daughter of the deceased, the objector and the executor entered into a stipulation settlement. The parties agreed, in open court, that the objectant would withdraw all of her objections to the probate with prejudice, and that the executor would pay her the sum of $20,000 with interest from October 27, 1987. It was further stipulated that, if the entire settlement sum was not paid on or before September 30, 1988, a judgment for the unpaid balance plus interest could be entered against the executor without further application or notice to the court. In that event, a mortgage and note on real property owned by the executor personally could be “entered” to secure payment. The stipulation further provided that, if the payment were not timely made, the objections to probate could be reinstated and the matter could proceed to trial.

It is well settled that a stipulation of settlement made in open court is binding upon the parties thereto, absent fraud, collusion, mistake or accident or other grounds of a similar nature. In the instant matter, the executor has failed to establish that he, a practicing attorney for about 29 years, was unable to understand the clear and distinct terms of the stipulation. Indeed, a review of the record clearly reflects that the executor understood the terms and agreed to them. There is no evidence to support the executor’s contention that the Surrogate’s Chief Law Assistant and the objectant coerced him into entering into the stipulation. We find absolutely no evidence of fraud, mistake or collusion in the execution of the stipulation.

Also, 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.

The probate of the will is the first step in effecting the last wishes of a deceased person. Denial of probate means denial of testator’s last wishes also.

If you are named as executor in a will and an objection is filed against the probate of it, you will need the assistance of a Kings County Probate Attorneys or Kings County Estate Lawyers of Stephen Bilkis & Associates. Call us now.

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