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Attesting Witnesses Did Not See Decedent’s Signature on the Will and One Attesting Witness Did Not Know the Document Was a Will—The Will Was Not Duly Executed and the Petition for Probate Was Properly Dismissed

The Third Department determined the petition seeking probate of a will was properly dismissed because the attesting witnesses did not know whether the decedent had signed the will.  One attesting witness was approached by decedent in the hallway of the assisted living facility where the witness worked and saw only the page of the document which he signed.  Another attesting witness, also approached in the hallway by the decedent, was not aware she was signing a will and did not see decedent’s signature on the document. The court explained that an attestation clause, standing alone, will not demonstrate due execution of a will. “…[T]he testator must acknowledge his or her signature to the witnesses. The testator must also declare to each witness that the document is the testator’s will (see EPTL 3-2.1 [a]).” Here, two of the three attesting witnesses did not sign the will in conformity with the statutory requirements:

To be duly executed, a will must be subscribed by the testator in the presence of at least two attesting witnesses, or the testator must acknowledge his or her signature to the witnesses. The testator must also declare to each witness that the document is the testator’s will (see EPTL 3-2.1 [a]). Here, the subject will contains an attestation clause. However, Surrogate’s Court must nonetheless examine the attendant circumstances to determine the validity of the will, and it is well established that the attestation clause standing alone will not suffice to meet the proponent’s burden of demonstrating due execution by a preponderance of the evidence if affirmative proof reveals that the required elements were lacking … . In this analysis, “the testimony of the attesting witnesses is entitled to great weight” … . Matter of Yen, 2015 NY Slip Op 03228, 3rd Dept 4-16-15

 

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