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Proof Insufficient to Demonstrate Will Drafted and Signed a Few Days Before Death Reflected Decedent’s Intentions

The Third Department affirmed Surrogate’s Court’s denial of the admission of a will to probate.  The will was drafted and signed a few days before decedent’s death and changed the disposition of property.  The court described the proof necessary to authenticate a will and determined the proof was insufficient to link the most recent will to decedent’s intentions:

“In order for a will to be duly executed and attested in New York, the testator must sign the document at the end; the testator must sign or acknowledge the signature in the presence of the attesting witnesses; the testator must declare to each of the attesting witnesses that the instrument is his or her will; and there must be two attesting witnesses who shall, within 30 days, attest the testator’s signature and, at the request of the testator, sign their names and affix their residence addresses” (…see EPTL 3-2.1). Before admitting a will to probate, Surrogate’s Court must be satisfied that the will has been validly executed (see SCPA 1408 [1]…), “that the mind of the testator accompanied the act, and that the instrument executed speaks his [or her] language and really expresses his [or her] will” … . The proponent of a will bears the burden of proving its validity by a preponderance of the evidence … . * * *

In light of the uncertainty surrounding the drafting and execution of this will, we decline to disturb the decree of Surrogate’s Court denying admission of the will to probate … . Matter of Walker, 2015 NY Slip Op 00271, 3rd Dept 1-8-15

 

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