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Court Considers Whether to Probate a Will that was Handwritten in Italian, In re Prob. Proceeding, 2019 NY Slip Op 52107(U) (N.Y. Surr. Ct. 2019)


New York has strict rules about how a will must be drafted and executed in order for it to be valid.  There are also rules related to when a New York Surrogate’s Court will admit a foreign will to probate.  The purpose of these technical rules is to ensure that a will is authentic and that it truly represents the last wishes of the testator.  In this case the Surrogate’s Court had to consider whether a will that was written in Italian, executed in Italy, and hand-scribed by a notary should be admitted to probate.

Foreign wills, whether executed in another country or another state, will be admitted to probate in New York as long as it meets New York’s requirements.  For a will to be valid in New York, it must be writing, signed at the end by the testator, and witnessed and signed by two people.

In this case the will was written by a notary at the request of the testator.  The preamble to the will written by the notary states that the testator declared that the document was written by the notary to be the testator’s last will and testament and that there were witnesses present.  The document was signed at the end by the testator, two witnesses, and the notary.  The notary also stamped the document next to his signature.  However, the will did not have an attestation clause. An attestation clause is a statement at the end of the will where the witnesses certify that they saw the testator sign the will and declare that it is his or her last will and testament. Failure to include an attestation clause make a will contest more likely.

The petitioner is the nephew of the decedent and her sole beneficiary.  He requests that the court forgo requiring testimony of the two attesting witnesses since one of them cannot be located. The other witness lives in Italy and refuses to execute an affidavit at the American Consulate.  Instead, the petitioner submitted the deposition of the notary and requested that the court accept the testimony of the notary as an attesting witness.  In the deposition, the notary stated that he witnessed the execution of the will by the testator; that he witnessed each of the two witnesses sign the will; and that he recognized the signature on the document to be those of the witnesses.

In New York, if the testimony of a notary public is submitted in place of an attesting witness, then it must be determined whether the notary signed the will as a notary or as an attesting witness.  If in addition to performing the job of a notary the notary was also acted as a witness, then the court has the discretion to accept the notary’s testimony as that of a witness.

In this case, the preamble to the will indicates that the testator specifically requested the presence of the notary to write the dictated will and to witness the testator and the witnesses sign it.  Based on this, the Surrogate’s Court concluded that it was the intention of the testator that the notary’s presence was for a purpose beyond performing notary duties.

When considering New York’s will execution requirements, the goal of preventing fraud, and the details of the execution of the decedent’s will, the court concluded that there was sufficient evidence of due execution.  The court also concluded that there was sufficient evidence that the document presented was the true last will and testament of the decedent. Accordingly, the court admitted the will to probate.

Note that this case involved an uncontested will and a will that had a detailed preamble describing the circumstances of the will’s execution.  If these circumstances had not existed, the result of this case may have been different.



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