In New York, executing a valid will requires adherence to several statutory formalities. Firstly, the testator must be at least 18 years old and of sound mind to have the mental capacity to understand the nature and consequences of making a will. Secondly, the will must be signed by the testator or someone in their presence and direction if the testator is physically unable to sign. Thirdly, at least two witnesses, who are not beneficiaries under the will and are at least 18 years old, must sign the will in the testator’s presence and at their direction. Fourthly, the document must clearly express the testator’s intent to make a will and dispose of their property upon their death. Failing to follow any of these formalities could result in the will being deemed invalid, making it important to consult a lawyer to ensure proper execution.
Matter of Basch highlights the importance of following legal formalities in the execution of a will, and the consequences of failing to do so.
In 2007, Bernard Basch passed away at the age of 95. He was survived by his two daughters, Susan and Gail, and his son, Ronald. Bernard had executed a will in 2005, which was admitted to probate in the Surrogate’s Court of Nassau County. Under the terms of the will, Bernard left the residue of his estate to his son, Ronald.
However, Susan and Gail contested the will, alleging that it was not executed in accordance with the formalities required under the EPTL. Specifically, they argued that Bernard did not sign the will in the presence of two witnesses, as required by EPTL § 3-2.1.
At trial, the attorney who had prepared the will testified that he had witnessed Bernard’s signature, and that the witnesses had signed the will in his presence. However, Susan and Gail presented evidence that the witnesses were not in the room when Bernard signed the will, and that the attorney had not witnessed Bernard’s signature. In light of this conflicting evidence, the Surrogate’s Court held a hearing to determine the validity of the will.
The Surrogate’s Court ultimately found that the will was not executed in accordance with the formalities required by New York law, and therefore was invalid. The court noted that the attorney’s testimony regarding the execution of the will was inconsistent, and that there was no evidence to support his claim that he had witnessed Bernard’s signature. Furthermore, the court found that the witnesses’ signatures on the will appeared to be “cut and pasted” from another document, raising questions about their authenticity.
The court also rejected Ronald’s argument that the will should be admitted to probate under the doctrine of substantial compliance. Under this doctrine, a court may overlook minor deviations from the formalities required for the execution of a will if the testator’s intent can be ascertained from the face of the will or from extrinsic evidence. However, the court found that the defects in the execution of the will were not minor, and that there was no extrinsic evidence to support Bernard’s intent to execute the will in the manner in which it was executed.
The Basch case illustrates the importance of following legal formalities in the execution of a will. In New York, the EPTL sets forth strict requirements for the execution of a will, including the requirement that the testator sign the will in the presence of two witnesses who must also sign the will in the testator’s presence. Failure to comply with these formalities can result in the invalidation of the will.
In the Basch case, the court relied on the testimony of witnesses and the appearance of the signatures on the will to determine whether the will had been properly executed. The court’s decision highlights the importance of having witnesses who can testify to the proper execution of the will, and the potential consequences of relying on witnesses whose testimony is inconsistent or questionable.
The court’s rejection of the doctrine of substantial compliance in this case also illustrates the importance of strict compliance with the formalities required for the execution of a will. While the doctrine of substantial compliance may be available in some cases, courts will not overlook significant deviations from the formalities required by the EPTL.