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Validity of a Will Questioned


A notary public whose duty is to administer oaths regarding the execution of public documents took a piece of ordinary notebook paper and folded it so that it made four pages. On this sheet of folded notebook paper, the notary public wrote in his own handwriting his last will and testament. T

he words “my Will and Testament” were clearly handwritten at the bottom near the signature of the testator. After the line where the testator’s signature appears, the words “witnessed this 21st day of January 1924” appears. After this line, on the left and right side of the bottom of the piece of paper, two signatures appear. At the bottom of the signatures, the addresses of those who signed are handwritten.

Nine years after writing down this document, the notary public deposited it with the Surrogate’s Court on Queens County for safekeeping. A New York Probate Lawyer confirmed that it remained in the safekeeping of the Surrogate’s Court until the notary public died in 1965.

A day after depositing the document with the Surrogate’s Court, the notary public entrusted an envelope into the safekeeping of his brother-in-law. The envelope was sealed and it was marked as “Important Papers.” Inside this envelope, a card was enclosed where it was declared that the notary public’s will was in the care of the Queen’s County Surrogate Court.

The document is now presented for probate. And objections to its admission into probate were submitted. The ground for the objection was that there was insufficient evidence that the document complied with the formalities required by law.

First, the subscribing witnesses are both dead. Second, there is no proof that those who signed as witnesses actually knew or understood that they were signing as witnesses to a will.

First, the testator was a notary public, a person whose job it is to make documents and attest to the execution of public documents. Nassau County Probate Lawyers commented that he was not an ordinary person who had no understanding of legal formalities.

Second, the testator’s desire to create a will can be inferred from the fact that he wrote in block letters the title of the document which was “My Will and Testatment.” This means that even if the testator only used ordinary notebook paper and he only wrote the document himself in his own handwriting, he had every purpose of disposing of his estate.

Third, the notary public had every intention to comply with the legal requirements for he found two persons to attest to his will. Brooklyn Probate Lawyers said that there may not be an attestation clause on the document ( an attestation clause is a short paragraph where the witnesses acknowledge that they understand that they are signing a will and that they saw the testator sign the document). But it can be inferred from the very bold and very conspicuous writing of the title of the document very near the signatures at the bottom of the sheet that the witnesses cannot but read the title which says “My Will and Testament.”

Fourth, from the physical arrangement of the signatures of the witnesses and the testator it can be inferred that they saw the testator’s signature when they signed the document.

Fifth, the notary public deposited this document with the Surrogate Court. From this, it can be inferred that he wanted his estate disposed of in accordance with his instructions in the document. He wanted this document to govern the disposal of his assets when he is dead by making sure that this document was filed in the probate court.

Sixth, the proponent of the will offered other evidence that tended to prove the handwriting of the testator and the witnesses were genuine.

The Surrogate’s Court Act provides that if all the subscribing witnesses are all dead, the will can still be established when the handwriting of the testator and the witnesses are proved.

It has been held by the Supreme Court that there are no form of words is necessary to make the attestation clause effective. It is enough that the witnesses knew that the testator wanted to make the document his will. If it can be inferred that the witnesses knew that the testator was making his will, then there is sufficient compliance with the requirements.

The Court upheld the ruling of the Surrogate Court to submit to a jury the determination of the due execution of the document. If there is no jury, then the Court holds that there is sufficient evidence from the document itself to prove the validity of the will. The Court decreed the probate of the will and dismissed the objections.

Making a holographic or handwritten will is allowed so long as the handwritten will substantially complies with legal requirements. A New York Probate attorney can give you advice on how your handwritten will can comply with legal requirements. Stephen Bilkis and Associates have capable attorneys who are experienced in advising clients as to legal requirements for validity and due execution of wills.

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