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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
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.
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 firstname.lastname@example.org
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