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 It is established that the will has not been revoked, and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

If you would like to discuss your own personal situation with me, review your current Will, or put together an estate plan that is tailored for your needs, you can get a free 30-minute consultation simply by filling out this contact form. I will get back to you promptly.

I invite you to join my list of subscribers to this blog by clicking on "Subscribe to" on the left-hand side of the page so that you can receive a notification when the next installment has been published.
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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.

New York's Dead Man's Statute: Some Preliminary Considerations

New York is in the minority of states that still have a Dead Man's Statute.  New York's Dead Man's Statute, also known as CPLR § 4519, came into law in 1851.  The legislative concern at the time was over perjury:  that self-interest would prevail when a person testified in a civil matter involving conversations with a now-deceased person where the witness had a pecuniary interest in the outcome of the case.  That concern persists today and is particularly evident in the area of Wills and trusts.

New York's Dead Man's Statute codified what had been common law practice since the time of Elizabeth I of England.   It is intended to protect the decedent's estate against claims of conversations or interactions that cannot be verified.  What a Dead Man's Statute does is make a witness legally incompetent to testify about conversations that the witness had with a deceased person in a case where s/he could benefit financially if the trier of fact found that evidence to be materially determinative.   Since the deceased/legally incompetent person's lips are forever sealed, so must the lips of the other conversant with respect to the matter in contest.  In New York, the statute has been invoked in cases involving such matters as bequests in Wills; trust provisions;  requests for specific performance; and lack of testamentary capacity. 

There are also interesting cases where the Dead Man's Statute intersects with the competency of a witness exception of the Federal Rules of Evidence (FRE) Rule 601, at which point the Dead Man's Statute supplies the state law .  At times, the Dead Man's Statute serves as a statutory exception to the hearsay rule.  At other times, the hearsay exception in the Federal Rules trumps the Dead Man's Statute.  Establishing pedigree for either the witness or the decedent in a Wills contest is one such example (FRE 804(b)(4)).

In New York, there are three exceptions to the Dead Man's Statute:

1. in a tort action for negligence involving a car, boat, or plane, an interested witness can testify to the general facts and results of the accident;
2. in estate cases where the estate "opens the door" by offering evidence or questioning an interested witness about conversations or transactions with the deceased;  
3. where the estate of the deceased does not lodge a timely objection during a Wills contest or trial, then the estate waives it right to object based on the Dead Man's Statute.

The first exception is an important one in vehicular negligence actions because New York does not have a guest statute.  Thus New York's interest is to allow a New York State domiciliary the right to recover damages against a negligent driver.  The next two exceptions can be triggered during an estate contest, for instance, where a  substantial "gift" is concerned.

In future posts, I will examine specific cases in which the Dead Man's Statute figured prominently.  Each case presents an interesting set of facts that prepares the stage for the application of the Dead Man's Statute. 

If you would like to discuss your own personal situation with me, review your current Will, or put together an estate plan that is tailored for your needs, you can get a free 30-minute consultation simply by filling out this contact form. I will get back to you promptly.

I invite you to join my list of subscribers to this blog by clicking on "Subscribe to" on the left-hand side of the page so that you can receive a notification when the next installment has been published.
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Can't Touch This: In Terrorem Clauses in Wills

Family squabbles over the estate of a decedent are the stuff of tragedy and of farce.  For this reason, testators often include in terrorem clauses that penalize with forfeiture of their testamentary gift any beneficiary of the Will who unsuccessfully contests its provisions in any court.  In terrorem clauses are also designed to safeguard carefully crafted estate plans from disruption.

New York law, however, provides for some limits on in terrorem clauses in order to prevent fraud, undue influence, or gross injustice.  These safe harbor provisions are found in Surrogate's Court Procedure Act (SCPA) § 1404 and Estates, Powers and Trusts Law (EPTL) § 3-3.5.  The purpose of these safe harbor provisions is to allow a beneficiary to inquire into the circumstances surrounding the drafting of a Will without risking forfeiture of the bequest.  Because courts must strictly construe in terrorem clauses, such safe harbor challenges are the only means a beneficiary has of evaluating the risk of contesting the Will.

EPTL § 3-3.5 provides for "[t]he preliminary examination, under SCPA 1404, of a proponent's witnesses, the person who prepared the will, the nominated executors and the proponents in a probate proceeding" (EPTL 3-3.5 [b] [3] [D]).   SCPA 1404 [4] states that these persons "may be examined as to all relevant matters which may be the basis of objections to the probate of the propounded instrument."  Did the Legislature intend that the safe harbor provisions apply only to those persons expressly mentioned in the companion statutes, or did the Legislature merely provide examples of the types of persons who could be examined and not an exhaustive list?

The New York Court of Appeals addressed the issue of safe harbor provisions as they relate to in terrorem clauses in Matter of Singer, 2009 NY Slip Op 09265 [13 NY3d 447].  On 15 April 2003 Rabbi Joseph Singer executed a Will leaving his Brooklyn home, much of his personal property, and $200,000 to his daughter Vivian who had given up her life to take care of her father's needs.  To his son Alexander he left half of the remaining estate (to be shared with Vivian who was also her father's executor), less the outright gifts of $15,000 to each of Alexander's two sons.

The Will contained an in terrorem clause addressed specifically at Alexander.  "I specifically direct that my son, Alexander I. Singer, not contest, object to or oppose this Will or The Joseph Singer Revocable Trust Agreement, or any part of my estate plan or any gifts made by me, and I specifically direct that my son not take my daughter, Vivian S. Singer, to a Bet Din (religious court) or to any other court for any reason whatsoever; and I specifically direct that if my son takes any such action or brings on any such proceeding, neither my son nor any of his issue shall receive any share of my estate, whether passing under this Will, under The Joseph Singer Revocable Trust Agreement or otherwise."

On 5 March 2004 Rabbi Singer died and Vivian submitted the Will for probate shortly thereafter.  Alexander then served a notice of discovery seeking, among other things, to depose Joseph Katz, Rabbi Singer's previous attorney who had drafted seven Wills for the Rabbi but not the one in question.  Mr. Katz was subsequently deposed by Alexander's attorney.  Thereupon, it was revealed that Rabbi Singer had inserted an in terrorem clause in a prior 2002 Will drafted by Katz.  Alexander did not challenge the Will.

Was the deposition of Mr. Katz sufficient clause to trigger the in terrorem clause?  After all, Katz did not belong the the class of persons expressly mentioned in the safe harbor statutes.  The safe harbor provisions do not include a former attorney.  Or was the testator's intent, that Alexander not challenge the Will in any way, satisfied because Alexander never challenged the Will?

The Court of Appeals balanced the testator's intent with the public policy concern that Wills be valid and authentic before being admitted to probate.  The court reasoned that only by examining Katz could Alexander properly conclude that he lacked a basis for a successful Wills contest.  "A broader construction of these clauses as manifesting testator's intent to preclude the examination of this witness would essentially cut off all other persons from being asked for information, no matter the potential value or relevance of that information—even as to the medical or psychological condition of the testator at the time the will was executed. Interpreting these clauses narrowly will allow surrogates to address on a case-by-case basis whether the conduct undertaken is in keeping with the testator's intent."  

With Matter of Singer,  the Court of Appeals set a standard for the case-by-case construction of in terrorem clauses:  whether the conduct undertaken is in keeping with the testator's intent.   Had the court ruled in Vivian's favor, then Alexander and his sons would have been stripped of their bequests.  Clearly, that was not Rabbi Singer's intent with the in terrorem clause.  He merely wished to protect Vivian's bulk share from a challenge.  He did not wish to disinherit his son or his grandsons.

Matter of Singer is an object lesson about the use (and possible misuse) of in terrorem clauses.  As Judge Graffeo noted in his concurrence, "in terrorem clauses are not favored since they may result in a total forfeiture of a bequest and—because of this serious consequence—they must be strictly construed to conform to the testator's expressed intent."   An in terrorem clause must be drafted very carefully to reflect the testator's intent.  Your attorney can advise you as to whether an in terrorem clause is the best strategy based upon your unique circumstances.

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