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Estate and Elder Law

Ancient Documents: Overcoming the Obstacles of Time

By Jennifer F. Hillman*

As many estate attorneys can attest, probating an "older" will has additional challenges to overcome.  In New York, courts generally require the testimony or an affidavit of one attesting witness prior to admitting a will to probate.  This requirement is often met if the witnesses signed a NY SCPA 1406 attesting affidavit at the time the will was executed, however these affidavits are not always available.  When a significant amount of time has passed since a will was executed, locating the attesting witnesses becomes increasingly difficult.  Witnesses pass away or move away and become unavailable to testify. 

In such circumstances, a court may utilize the "ancient" document rule. 

...[A]fter a long lapse of time, ordinary testimonial evidence from those who saw the document's execution or knew the style of handwriting or heard the party admit the execution, is practically unavailable, and a necessity always exists for resorting to circumstantial evidence.

Matter of Hehn, 6 Misc. 2d 801, 802, 160 N.Y.S.2d 417 (Sur. Ct. Nassau County 1957) [enhanced version available to subscribers]. 

The policy underlying this doctrine is that as long as the document's place of custody can be established, its unsuspicious appearance, and perhaps other circumstances can all be submitted to a jury for determination.  Id. at 802-803. Some New York courts follow the common law rule that a document is ancient after thirty (30) years, while others follow the twenty (20) year federal rule. 

In a recent case out of the Nassau County Surrogate's Court, Matter of Santoro, 31 Misc. 3d 1231A, 929 N.Y.S.2d 202 (Sur. Ct. Nassau County 2011) [enhanced version], the court was faced with a nineteen (19) year-old will   The court and the attorneys were unable to find any precedent for the admission of a will as an ancient document when it is only 19 years-old.  Thus, the court declined to admit the will under this principle. 

However, the court did set forth an interesting alternative to the issue.  Because one of the witnesses to the will, the attorney-draftsman, died a resident of the county and his will was admitted to probate in the county, there was an original exemplar of his signature on file with the court.  The court determined that an affidavit from a handwriting expert stating that the two original signatures were signed by the same person, as well as an affidavit from the deceased's relatives that the signature on the will at issue was that of the decedent, the court would be satisfied as to the genuineness of the will and permit is admission to probate. 

While a resolution was fashioned in that particular case, estate attorneys should be mindful of this problem.  The execution of a NY SCPA 1406 affidavit at the time the will is executed will clear up this problem, however the attorney who probates the will is not always the attorney who drafted it.  The internet has made finding witnesses much easier.  However, the Santoro case also shows that a little ingenuity can help overcome the obstacles of time.     


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

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