New York Probate and Estate Administration Lawyer Blog
Matter of the Estate of Perlman is a case that highlights the importance of complying with the legal requirements for executing a will, particularly when it comes to the role of witnesses. In New York, the requirements for witnessing a will are governed by Section 3-2.1 of the New York Estates, Powers and Trusts Law. A will must be signed by the testator (the person making the will) in the presence of at least two witnesses. The witnesses must also sign the will in the presence of the testator and each other.
Background
The case involves the estate of Mary Perlman, who passed away in 2013. Perlman executed a will in 2006, which was admitted to probate after her death. The will named Perlman’s sister as the executor and beneficiary of her estate, and also made provisions for several other beneficiaries. However, the validity of the will was called into question due to concerns about whether it had been properly executed.
Discussion
In the case of Perlman’s will, one of the witnesses, Jerome Haims, had passed away prior to the probate proceedings, and the other witness, Dennis McKenna, was unable to provide any meaningful testimony as to the circumstances of the execution of the will. As a result, the court was left with insufficient evidence to establish that the will had been properly executed.
The court noted that the testimony of the remaining witness, Dennis McKenna, was “unreliable and unconvincing.” McKenna had testified that he did not remember the circumstances of the execution of the will, and was unable to recall whether Perlman had declared the document to be her will. The court also noted that there was no other evidence to support the validity of the will, such as testimony from a lawyer or other witness.
Conclusion
The court ultimately concluded that the will was not properly executed and therefore could not be admitted to probate. The court’s decision highlights the importance of complying with the legal requirements for executing a will, particularly with respect to the role of witnesses.
The case is also significant because it underscores the potential consequences of failing to properly execute a will. In the absence of a valid will, the decedent’s assets will be distributed in accordance with the laws of intestacy, which may not reflect the decedent’s wishes. NY EPTL § 4-1.1. For example, under New York’s law of intestate succession, if the decedent is survived by a spouse but no children, the spouse will inherit the entire estate. If the decedent is survived by a spouse and children, the spouse will inherit the first $50,000 of the estate, plus one-half of the remaining estate. The children will inherit the other half of the estate in equal shares. In this case, the failure to establish the validity of the will led to a lengthy legal dispute over the disposition of the decedent’s assets.
The court’s decision in this case is also notable because it highlights the potential risks associated with using non-lawyers to assist in the execution of a will. In Perlman’s case, it appears that the will was executed without the assistance of a lawyer. While it is not required to have a lawyer assist in the execution of a will, doing so can help ensure that all legal requirements are met and that the document is more likely to be considered valid.
Additionally, the use of non-lawyers to assist in the execution of a will can create a number of potential issues, particularly if the witnesses are not familiar with the legal requirements for executing a will. For example, witnesses may not understand the importance of being present during the entire execution of the will or may not be aware of the requirement that they sign the document in the presence of the testator and each other. Thus, it is recommended that anyone wishing to make a will contact an experienced New York estate lawyer.