Matter of Maset

[*1] Matter of Maset 2009 NY Slip Op 52335(U) [25 Misc 3d 1229(A)] Decided on November 19, 2009 Sur Ct, Dutchess County Pagones, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 19, 2009
Sur Ct, Dutchess County

In the Matter of a Probate Proceeding, Will of Elizabeth Bethel Maset, Deceased.



2009/98416



DOMINIQUE MANPEL, ESQ.

Attorney for Petitioner

155 Main Street

Beacon, New York 12508

James D. Pagones, J.

This is an uncontested probate proceeding.

The decedent died on June 19, 2009. She was survived by her two adult daughters, Alicia Maset and Renée Maset. Both have executed a waiver of process and consent to probate.

The propounded instrument is dated March 6, 2007. Paragraph SECOND of the will provides for a specific bequest of all the decedent's jewelry to Alicia and bequests of $1,500.00 each to Matthew Riddick, Frank Gibbs and Renée Maset. The residuary estate is left entirely to Alicia under Paragraph FOURTH. The decedent nominates Patricia Polhemus to serve as the executrix. No alternate executor or executrix is designated.

The instrument was witnessed by Matthew Riddick, Alicia Maset and Patricia Polhemus. Their signatures and addresses appear following the attestation clause. Each witness has submitted a "self-proving" affidavit pursuant to SCPA §1406. Two were executed on September 25, 2009, and one on October 14, 2009 before two different notaries.

The issues are whether the dispositions to Matthew Riddick and Alicia Maset are void since they are two of the three attesting witnesses and whether Patricia Polhemus is disqualified from serving as the executrix because of her status as a witness.EPTL §3-2.1(a)(4) mandates that "[t]here shall be at least two attesting witnesses, who shall...both attest the testator's signature, as affixed or acknowledged in their presence, and at the request of the testator, sign their names and affix their residence addresses at the end of the will."

EPTL §3-3.2(a) provides that "an attesting witness to a will to whom a beneficial disposition or appointment of property is made is a competent witness and compellable to testify respecting the execution of such will as if no such disposition or appointment has been made..." This provision is qualified by the statute in that the disposition "to an attesting witness is void unless there are, at the time of execution and attestation, at least two other attesting witnesses to the will who receive no beneficial disposition or appointment thereunder." (EPTL §3-3.2[a][1].)

There is nothing in the record of this proceeding to suggest that the court should even consider either notary as an attesting witness. (Matter of Ryan, 12 Misc 2d 192 [Sur Ct Nassau Cty, 1958].) Where as here, it appears that the capacity of the person signing the document is only as a notary public and not as a witness, the requirements of EPTL §3-2.1(a)(4) have not [*2]been met. (Matter of Margolis, N.Y.L.J., 02/23/07, at 32 col. 3, 2007 NY Misc.LEXIS 1594.)

Patricia Polhemus is a disinterested witness. EPTL §3-3.2(a)(1) voids will dispositions to beneficiaries who also serve as attesting witnesses. On its face, it would appear that the testamentary gifts to Matthew Riddick and Alicia Maset are cancelled. However, the court is sensitive to the policy that statutes are to be construed to carry out the over all legislative intent and to avoid injustice or hardship. (Matter of Jacob, 86 NY2d 651, 667 [1995]; Matter of Morea, 169 Misc 2d 415, 417 [Sur Ct Bronx Cty, 1996].)

Matthew Riddick should not have to forfeit, through no fault of his own, the modest monetary bequest that the decedent wanted him to receive. His testimony will not be considered to prove the propounded instrument in order to preserve the bequest. Alicia Maset's testimony will be accepted as the second attesting witness for the practical reason that, although the disposition of the jewelry and residuary estate will be void in the first instance, she nevertheless is allowed to receive the lesser of her intestate distribution or the disposition given to her under the will as a matter of law. (EPTL §3-3.2[a][3]; Turano and Radigan, New York Estate Administration, 2009 edition, §3.05[d]; 38 N.Y.Jur2d §477; Matter of Morea, supra.) In this case, Alice will receive her intestate share pursuant to EPTL §4-1.1(a)(3).

Patricia Polhemus is not disqualified from serving as the executrix simply because she is one of the attesting witnesses. The nomination of an attesting witness as an executor is not deemed a beneficial disposition to that individual under the theory that he or she is being compensated for services rendered rather than the recipient of a testamentary disposition from the decedent. (Matter of Fracht, 94 Misc 2d 664, 668, [Sur Ct Bronx Cty, 1978].) Therefore, since no objections have been filed by any of the interested parties, Patricia Polhemus is not precluded from serving as the executrix in this estate.

The court is satisfied that the will was validly executed pursuant to law and that the decedent was at the time of its execution of sound mind, competent to make a will and not under any restraint. (SCPA §1408; EPTL §3-2.1.) It may be admitted to probate.

Petitioner's counsel is directed to submit a decree consistent with the foregoing, including the legacy to Matthew Riddick, within ten (10) days from the date of this decision. The foregoing constitutes the decision of the Court.

Dated:Poughkeepsie, New York

November 19, 2009

ENTER

HON. JAMES D. PAGONES, S.C.J.

TO:

DOMINIQUE MANPEL, ESQ.

Attorney for Petitioner

155 Main Street

Beacon, New York 12508