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Surrogate’s Court declined to probate a document that did not meet the requirements of a will.  In re the Estate of Wolf, 38 Misc. 3d 564 (N.Y. Sur. Ct. 2012)


A will, when properly executed, is a legally enforceable document in which the testator gives instructions as to what is to happen to their property after their death. In this will contest case the Surrogate’s Court has was asked to determine whether a document signed by the decedent was in fact a last will and testament that should be probated.

Under New York law, as in all jurisdictions, there are very specific requirements for a will to be valid.  It must be signed by the testator in the presence of two witnesses or a the direction of the testator in their presence. NY EPTL § 3-2.21. With some notable exceptions, the will must also be writing. Further, at the time that they executed the will, the testator must have had the mental capacity to sign the will.

If, as in this case, a will was executed in another jurisdiction, must have been executed in a manner consistent with that jurisdiction. In this case, one of the documents submitted was executed in Pennsylvania.

The decedent was survived by his spouse and three children. The decedent’s surviving spouse, Raquel Wolf, has petitioned for the probate of two documents: a last will and testament dated June 9, 2005 and a codicil dated June 21, 2006. The decedent’s son, Chaim Wolf, cross-petitioned for probate of a April 15, 2011 will. While the April 15th document was signed and witnessed, it did not look like a will. It was a list of instructions, most of which benefitted Chaim.

In opposition to the April 11th instrument, the petition notes that it lacks testamentary character because it directs that the instructions in the document are to be instituted not at the death of its author, but  :as soon as possible.”  For example, the April 11th document states:

  1. Chaim will be in charge of making all decisions with me or for me.
  2. Chaim should be a signee on all my accounts. This includes personal, business, and tzedaka.
  3. All dealings in the past as well as present resulting in financial gain and loss both personal and business, have been and are my business decisions.
  4. I would like Chaim involved in all my affairs and to be carbon copied (c.c.) on all correspondence pertaining to me on a daily basis.

The cross petitioner argues that because the document was executed so close to the decedent’s death, he intended that the provisions in take place after his death and during his lifetime.

The court was not persuaded by the arguments of the cross petitioner. The court concluded that the instructions in the April 11th instrument clearly appear to be intended and as inter vivos transactions. All of the instructions were to be carried out during the author’s lifetime and there were no posthumous dispositions.

Other evidence that points to the document not being a will are:

  • Nowhere in the document does the decedent specify that it is intended as his last will and testament.
  • Nowhere is there an attestation clause. An attestation clause is a provision at the end of a will that is signed by two witnesses and recites the formalities required to make the will effective. See NY EPTL § 3-2.21
  • Nowhere does the document refer to the decedent’s death.
  • There is a confidentiality instruction. Because a will must be probated, it must become a public document.

The court noted that the document appeared to be more like a Power of Attorney than a last will and testament.

In re the Estate of Wolf demonstrates the importance of making sure that your will is drafted by an experienced estate attorney. Otherwise, the court my find it insufficient and decline to probate it and your wishes many not be fulfilled.

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