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Jury Instruction Re: Presumption Will Was Duly Executed Proper Even In Absence of Self-Attesting Affidavits by the Witnesses

The Third Department determined the absence of self-attesting witness affidavits did not preclude instructing the jury that it could presume the will was duly executed if it found that the witnesses signed their names after the attestation clause:

…”[I]f the attestation clause is full and the signatures genuine and the circumstances corroborative of due execution, and no evidence disproving a compliance in any particular, the presumption may be lawfully indulged that all the provisions of the statute were complied with, although the witnesses are unable to recollect the execution of what took place at the time” … . The attestation clause here states that decedent signed the will in the presence of the attesting witness, declared the document to be her last will and testament, and the witnesses signed the clause at decedent’s request and in her presence, in accord with the statutory criteria (see EPTL 3-2.1). Moreover, both attesting witnesses confirmed that they were present during the ceremony, that they signed the attestation clause and that decedent appeared of sound mind. One witness testified that he observed decedent sign the will, while the other witness, who was a notary public, testified that she would not have served as a witness unless decedent signed the will in her presence. In this context, Surrogate’s Court properly charged the jury regarding the presumption of due execution of the will … . Matter of Shapiro, 2014 NY Slip Op 07395, 3rd Dept 10-30-14

 

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