Digging A Little Deeper: Less Obvious Attesting Witness-Beneficiaries Find Their Bequest Void Under NY EPTL 3-3.2

It is well-understood by estate practitioners that a beneficiary of an estate should not serve as an attesting witness to a will.  If he does, he or she is a competent witness for purposes of probating the will, however, under EPTL 3-3.2, the bequest under the will is void unless (i) two other persons who receive nothing under the will signed as attesting witnesses, and (ii) the testimony of the witness-beneficiary is not needed at probate.  In some instances New York courts have considered whether the notary public who signed the self-proving affidavit under SCPA 1406 could also be an attesting witness in order to avoid forfeiture - as long as the testator asked the notary to sign as a witness.  See Matter of Ryan, 12 Misc. 2d 192, 174 N.Y.S.2d 607 (Sur. Ct. Nassau County 1958) [enhanced version available to lexis.com subscribers] (finding an inquiry should be made as to whether the notary in fact acted as a subscribing witness); see also Matter of Maset, 25 Misc. 3d 1229A, 906 N.Y.S.2d 773 (Sur. Ct. Dutchess County 2009) [enhanced version available to lexis.com subscribers] (finding there was nothing in the record to suggest that the court should consider the notary as an attesting witness); Matter of Margolis, N.Y.L.J., Feb. 23, 2007 at 32, col. 3, 2007 N.Y. Misc. LEXIS 1594 (Sur. Ct. New York County).

If a witness-beneficiary is also a distributee, he or she can get partial relief from this rule.  The distributee can take the lesser of his or her intestate distribution or the disposition given to them under the will.  If they receive the lesser of what they would have received anyway, there is no incentive for the distributee to lie about the circumstances surrounding the execution of the will. 

A recent decision from the Suffolk County Surrogate's Court is an interesting potential expansion of this rule, and seemingly one of first impression.  In Matter of Altstedter, N.Y.L.J., Jan. 29, 2013, at 29, col. 6 (Sur. Ct. Suffolk County), the decedent was a resident of a retirement community named Peconic Landing.  Under his will, the Decedent left a specific bequest to the Peconic Landing Community Fund and the Peconic Landing Employees Appreciation Fund.  The Employee Appreciation Fund was established as a way for the residents to show employees their appreciation for good service, despite the strict "no tipping policy" of the community.  The fund is distributed to staff, typically at the end of the year, based upon a plan set forth by a committee of the residents. 

In Altstedter, the three attesting witnesses to the will were all employees of Peconic Landing at the time of the execution of the will, and were a class of people who could benefit from the Employee Appreciation Fund.  The Court declared the bequest void pursuant to EPTL 3-3.2(a)(1) and (2), despite its acknowledgement that there was nothing in the record or otherwise to suggest that the employee/witnesses had any knowledge of the contents of the will or the potential benefit to them.  The Court otherwise admitted the will to probate.          

This decision is a cautionary tale for practitioners when seeking attesting witnesses to the execution of a will.  A perfunctory review of the will for the names of the witnesses to determine whether they are specifically named as beneficiaries may not uncover this potential pitfall.  A closer analysis and understanding of the individual bequests and beneficiaries may be necessary.    

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Jennifer F. Hillman is an attorney at Ruskin, Moscou Faltischek, P.C., Uniondale, New York where her practice focuses in the area of trust and estate litigation.  She can be reached at jhillman@rmfpc.com

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