Probating a Lost Will or a Will as an Ancient Document

There are significant benefits to having an attorney prepare your Will.  Some are more evident than others.  In this post, we are going to discuss some less obvious but highly advantageous benefits for an attorney-drafted Last Will and Testament.

What happens if the attorney-draftsman who prepares your Will and supervises the execution ceremony dies before you do and the original Will, still in the custody of the attorney, is then lost?  What happens if, before you die, one of the witnesses to the Will also passes away?  There are a significant number of cases where a decedent signed a Will many years ago and where the original Will remained in the custody of the attorney-draftsman, leaving the decedent with only a conformed copy.  A conformed copy will contain the names and addresses of all signatories, including the testator/testatrix, but it is not signed by either the testator/testatrix or any of the witnesses.  The attorney's "back" will be affixed to the conformed copy and marked as a conformed copy. 

In order to prevent the probate of fraudulent Wills, New York's SCPA § 1407 establishes what proof is necessary to admit to probate a lost or destroyed Will:
"A lost or destroyed will may be admitted to probate only if

     1. It is established that the will has not been revoked, and

     2. Execution of the will is proved in the manner required for the probate of an existing will, and

     3. All of the provisions of the will are clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of the will proved to be true and complete."

If there is a conformed copy of the original Will found among the decedent's possessions, then that conformed copy will take the place of one of the credible witnesses.   The remaining credible witness must be able then to testify as to the substance of the original Will in order for the Will to be admitted to probate.   Recalling the substance of the Will meets the publication requirement.   In re Estate of Kleefeld , 55 N.Y.2d 253, 433 N.E.2d 521, 1982 N.Y. LEXIS 3542, 448 N.Y.S.2d 456 (Feb. 25, 1982),  the Court of Appeals reversed the Appellate Division's ruling to admit the  conformed copy of a Will lost while in the possession of the attorney-draftsman to probate, holding that "each of the witnesses must testify to all the principal parts of the will" (Id., at 258).  Since the remaining witness could not recall the substantive parts of the Will, probate was denied.  The proponent of the Will could not meet its burden on the issue of due execution.

But what happens in the case where the attorney-draftsman has passed away as well as both attesting witnesses? One of the exceptions to the Federal Rules of Evidence against hearsay that applies even when the declarant is not available as a witness is called the "ancient document rule" (Rule 803(16)): "A statement in a document that is at least 20 years old and whose authenticity is established."   New York State Surrogate's Courts have a long history of borrowing from the ancient document rule when it comes to probating a an old Will where the witnesses have predeceased the testator.
New York's SCPA § 1405 (4) states that "If all of the attesting witnesses are dead or incompetent or unable to testify by reason of physical or mental condition or are absent from the state and their testimony has been dispensed with as provided in this section the will may nevertheless be admitted to probate upon proof of the handwriting of the testator and of at least one of the attesting witnesses and such other facts as would be sufficient to prove the will."

The courts have added three elements necessary to have a Will admitted to probate as an ancient document.  First, the Will must be more than twenty (20) years old.  Second, the Will must have been taken from a natural place of custody (for example, the decedent's safe deposit box or filing cabinet).  And third, the Will must be of an unsuspicious nature.  Any alterations to the original Will must be fully explained. In In re Estate of Tier (3 Misc.3d 587,772 N.Y.S.2d 500, 2004 N.Y.Misc. Lexis 48 (Feb. 2, 2004), the Surrogate's Court of New York County admitted an ancient document to probate but without the alterations made to the Will.  The proponent of the Will stood to benefit from the alterations and failed to produce evidence sufficient to show that the alterations preceded the Will execution.  Once the proponent failed to produce the evidence, the burden shifted to the residuary beneficiaries, the ones who stood to lose from the alterations, to show that the alteration preceded the Will execution.  Since the residuary beneficiaries failed to provide such evidence, the Will was admitted to probate in its original form and without the alterations.

However, in the case of a lost Will or a Will propounded as an ancient document, the court must still be satisfied under SCPA § 1408 of "the genuineness of the will and the validity of its execution," as well as the competence of the testator and the absence of fraud and undue influence.  Thus, whether the Will offered for probate is a conformed copy or an ancient document, it is still open to be examined by any party to the probate proceeding under SCPA § 1404 either before or after the filing of objections.

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Alexander Hamilton, Trusts and Estates Attorney, Part Two

In June 1801, Hamilton was summoned to the deathbed of Robert Richard Randall who resided in a mansion and farm called Minto.  Minto Farm, located at Broadway between Eighth and Tenth Street in what is now Greenwich Village, sat on 21 acres with a mansion and other buildings.  Hamilton had once owned part of the property in partnership with John Jay and Isaac Roosevelt before selling the parcel to Baron Poellitz in 1787. In 1790 Robert Randall had purchased the farm and mansion formerly owned by the British Andrew Eliot, Collector of the Port, from Anne Stuart, baronne  von Poellnitz, the wife of Frederick Charles Hans Bruno, baron von Poellnitz.  Hamilton had also been involved in the sale and purchase of the property by Randall because he managed the Poellnitz's affairs in the United States.

Hamilton was counsel to Randall's sister Catharine Brewerton, and it is likely through that relation that he was asked by Robert to draft his Will.   In addition, Randall knew that Hamilton shared his philanthropic vision for the support of aging sailors.   George Washington, Hamilton, and Randall were all members of the very prestigious Marine Society.  Hamilton, John Marshall (who would become Chief Justice of the U.S. Supreme Court and who would play a part later in this story), and Leonard Lispenard (a wealthy merchant and large landowner of what is now TriBeCa, and commemorated by street names for both his first and last names) all served as presidents of the Marine Society that had been founded by Robert’s father, Captain Thomas Randall.

Captain Thomas Randall had made his fortune as a privateer (or buccaneer), a private person authorized by a government to attack and plunder enemy ships during wartime.  Thomas Randall had been a part owner of "La Jeune Babe" from 1773-1776 with Stephen Girard, who personally saved the U.S. Government from financial collapse during the War of 1812 and one of the wealthiest people at the time. Thomas Randall died in 1797 after a long maritime, governmental (he was Vice-Consul to China), and philanthropic career.  He had been the founder of the Marine Society in New York for the relief of sailors and their families.  Upon his death, his fortune was distributed in large part to his three children:  Paul R. Randall, Catharine Brewerton, and Robert Richard Randall.

It came as no surprise to Hamilton then that Robert Randall chose to leave his fortune in trust for the purpose of maintaining and supporting aging sailors.  But what Hamilton did next was pure genius:  he drafted a perpetual testamentary charitable trust that would be made viable by an act of the state legislature, thereby creating a road map for the legislature to transfer property for charitable purposes without the use of confiscation or eminent domain.  In addition, this Will provision established the private right of an individual to transfer property to a charitable corporation.  The charity would be created for the benevolent purpose of supporting fifty or more aging sailors from the proceeds of the rents from the residuary estate.   Here is the genius clause in its entirety:

“Sixthly.  As to and concerning all the rest, residue, and remainder of my estate, both real and personal, I give, devise, and bequeath the same unto the Chancellor of the State of New- York, the Mayor and Recorder of the city of New- York, the President of the Chamber of Commerce in the city of New- York, the President and Vice President of the Marine Society of the city of New-York, the senior Minister of the Episcopal Church in the said city, and the senior Minister of the Presbyterian Church in the said city ; to have and to hold, all and singular the said rest, residue, and remainder of my said real and personal estate, unto them, the said Chancellor of the State of New- York, Mayor of the city of New- York, the Recorder of the city of New-York, the President of the Chamber of Commerce, President and Vice President of the Marine Society, senior Minister of the Episcopal Church, and senior Minister of the Presbyterian Church in the said city, for the time being, and their respective successors in the said offices, forever, to, for, and upon the uses, trusts, intents, and purposes, and subject to the direction and appointments hereinafter mentioned, and declared concerning the same ; that is to say, out of the rents, issues and profits of the said rest, residue, and remainder of my said real and personal estate, to erect and build upon some eligible part of the land upon which I now reside, an Asylum, or Marine Hospital, to be called " The Sailors' Snug Harbor," for the purpose of maintaining and supporting aged, decrepit, and worn-out sailors, as soon as they, my said charity Trustees, or a majority of them, shall judge the proceeds of the said estate will support fifty of the said sailors, and upwards. And I do hereby direct, that the income of the said real and personal estate, given as aforesaid to my said charity Trustees, shall forever hereafter be used and applied for supporting the Asylum or Marine Hospital hereby directed to be built, and for maintaining sailors of the above description therein, in such manner as the said Trustees, or a majority of them, may, from time to time, or their successors in office may, from time to time, direct. And it is my intention, that the institution hereby directed and created, should be perpetual, and that the above mentioned officers for the time being, and their successors, should forever continue and be the governors thereof, and have the superintendence of the same : and it is my will and desire, that if it cannot legally be done, according to my above intention, by them, without an act of the Legislature, it is my will and desire that they will, as soon as possible, apply for an act of the Legislature to incorporate them for the purposes above specified. And I do further declare it to be (my) will and intention, that the said rest, residue, and remainder of my real and personal estate should be, at all events, applied for the uses and purposes above set forth ; and that it is my desire, all courts of law and equity will so construe this, my said Will, as to have the said estate appropriated to the above uses, and that the same should, in no case, for want of legal form or otherwise, be so construed, as that my relations, or any other persons, should heir, possess, or enjoy my property, except in the manner and for the uses herein above specified. And, lastly, I do nominate and appoint the Chancellor of the State of New- York for the time being, at the time of my decease, the Mayor of the city of New York for the time being, the Recorder of the city of New- York for the time being, the President of the Chamber of Commerce for the time being, the President and Vice President of the Marine Society of the city of New-York for the time being, the senior Minister of the Episcopal Church in the city of New- York, and the senior Minister of the Presbyterian Church in the said city, for the time being, and their successors in office after them, to be the executors of this my last Will and Testament.”

Within five years after the death of Robert Randall, the New York legislature, on the application of the trustees who were also the executors of the Will, passed a law that constituted the persons holding the offices named in the Will and their successors as a corporation by the name of “The Trustees of the Sailor’s Snug Harbor” so that they could execute the trust in the Will. 

Of course, this novel clause would not go without legal challenge, one that would reach the U.S. Supreme Court in the case of Inglis v. Trustees of Sailor's Snug Harbor, 28 U.S. 99 (1830).  That case and its aftermath will be the subject of Part Three of this story.  Stay tuned!

#AlexanderHamilton #Hamilton #SailorsSnugHarbor

The Presumption of Due Execution: The Importance of an Attorney-supervised Will Execution Ceremony

In a contested probate proceeding, proponents of the Last Will and Testament being offered for probate must submit evidence establishing a prima facie case for probate.  Those who object to the probate must raise a material issue of fact.  One such challenge concerns the due execution of the Will.

These days, there are any number of websites that can be used to create generic Last Wills and Testaments.   While these options may seem more cost-effective than hiring an attorney to draft a Will, in the end they may prove to be very costly options, especially in those cases where there is a Will contest.  In addition to not having the benefit of the advice of an attorney knowledgeable in New York's Estates, Powers, and Trusts Law for the preparation of this very important document, a person availing himself/herself of these low-cost options also deprives himself/herself of something invaluable:  the presumption of due execution.

How does this work in practice?  When an attorney drafts a Will, s/he will then arrange for a Will execution ceremony with the testator and the attesting witnesses present.  The attorney not only supervises the Will execution, but explains the legal significance ceremony to the attesting witnesses and asks the testator certain questions in front of the witnesses to ascertain certain facts being attested to by the witnesses and to establish the publication requirement.  Where the execution ceremony of a Will is supervised by the attorney who drafted the Will, the presumption of due execution exists.

The presumption of due execution creates a significant deterrent to someone who contest a Will offered to probate. In Matter of Leach, 3 AD3d 763, 764 (2004), the testator had a brother with whom he was not close.  The testator, perhaps anticipating a Will contest, hired an attorney to draft his Will. As part of his regular preparation for the drafting and execution of a Will, the attorney whom the testator retained gathered information about  the testator's family, his assets, and how he wanted to dispose of those assets

When the testator died and his Will was offered for probate, his brother contested the probate alleging, among other things, a lack of due execution.   Both witnesses, the attorney who drafted the Will, and his secretary were deposed.  The attorney testified as to as to his usual routine for the preparation and execution of a Will, and to the facts and circumstances surrounding the execution of the Will.  The Surrogate's Court of Chenango County admitted the Will to probate, and the brother appealed.

The Appellate Division, Third Department, affirmed the Surrogate's Court's ruling because, among other things, the petitioner had met her burden of proof of due execution;  "When an attorney drafts a will and supervises its execution, a presumption of regularity is raised that the will was properly executed."   Because the Will had been drafted by the attorney who then supervised its execution, the presumption of due execution existed and the petition was able to meet her burden of proof on the issue of due execution.  The burden of proof then shifted to the respondent to produce admissible evidence creating a triable issue of fact.  Arguments are not enough to meet this burden of proof.

Will contests are an expensive proposition for those offering a Will to probate.  When a Will is not prepared by an attorney and that attorney does not supervise its execution, then that Will does not carry with it the presumption of due execution.  Hiring an attorney to draft this exceedingly important document may just be the wisest expenditure that you can make.  You will ensure that those left behind have the the presumption of due execution in their arsenal should they need to defend your Last Will and Testament.