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