Matter of Altstedter

[*1] Matter of Altstedter 2012 NY Slip Op 52520(U) Decided on December 14, 2012 Surrogate's Court, Suffolk County Czygier Jr., 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 14, 2012
Surrogate's Court, Suffolk County

Probate Proceeding, Will of Norman Altstedter, Deceased.



2012-337



William F. Bates Esq.

Attorney for Petitioner

120 Court Street

Riverhead, New York 11901-3003
John M. Czygier, Jr., S.

In this probate proceeding, an instrument dated February 12, 2010, has been offered for probate as the last will and testament of the above named decedent by the executrix nominated therein. In addition to a decree granting probate, petitioner requests that "the Court shall determine that the gifts contained in Paragraphs Fourth & Fifth to Peconic Landing Community Fund & Peconic Landing Employees Appreciation Fund shall not be affected by reason of the Employment of Peconic Landing of the Attesting Witnesses."

Jurisdiction has been obtained over all persons listed in the petition as necessary parties. The record reflects, and the court notes, that decedent's distributees are his three nieces, who share decedent's residuary estate equally. All three nieces have consented to the relief requested.

Relevant Testamentary Provisions

With the request for construction of decedent's will, the relevant paragraph of the propounded instrument provide:

FOURTH: I give and bequeath the sum of Fifty Thousand ($50,000) Dollars to the PECONIC LANDING COMMUNITY FUND, located in Greenport, New York, for the unrestricted use by the Fund Directors to be used for the purposes of the FUND.FIFTH: I give and bequeath the sum of One Hundred Thousand ($100,000) Dollars to the PECONIC LANDING EMPLOYEES APPRECIATION FUND, located in Greenport, New York, for the unrestricted use by the Fund Directors to be used for the purposes of the FUND.

Relevant Statute

Section 3-2.2 of the Estates, Powers and Trusts Law provides, in pertinent part:

§ 3-3.2. Competence of attesting witness who is beneficiary; application to nuncupative will(a) 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 had been made, subject to the following:(1) Any such disposition or appointment made 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.(2) Subject to subparagraph (1), any such disposition or appointment to an attesting witness is effective unless the will cannot be proved without the testimony of such [*2]witness, in which case the disposition or appointment is void.

Issue Presented

The record reflects that all three attesting witnesses to the execution of the will were employees of Peconic Landing at Southold, Inc. ("Peconic Landing") at the time of the execution of the will.

The issue presented herein, which appears to be one of first impression, is whether, under this will, a "beneficial disposition" has been made to the attesting witnesses. As discussed more fully below, no "beneficial disposition" was made to the witnesses under Paragraph FOURTH of the will, but a "beneficial disposition" was made to the witnesses under Paragraph FIFTH of the will.

Discussion

Counsel for petitioner submitted to the court two relevant documents, a "2012 Committees and Clubs" brochure, and the "Peconic Landing Resident Handbook, Re-issued October 2011." The "2012 Committees and Clubs" brochure provides the following description of the "Community Fund":

The mission of the Community Fund is to raise funds and recommend to the Sponsor Board disbursements of funds to enhance the quality of life for residents at Peconic Landing. Funds may also be disbursed for the benefit of individual members of the community requiring financial assistance in meeting their monthly service fee obligations.The 12 members of the Community Fund are elected annually and meet monthly to discuss fund raising ideas and possible disbursements. Residents may seek to serve on this committee as vacancies arise by submitting a letter of interest to the chair or vice chair. Residents who wish to share their ideas for possible disbursements are encouraged to contact members of this committee. Donations are always welcome.

From the above description, it appears that the exclusive purpose of the Community Fund is to benefit the residents at Peconic Landing. As such, there was no "beneficial disposition" to the attesting witnesses to the will, and this bequest stands.

The "Peconic Landing Resident Handbook," with respect to the Employee Appreciation Fund, provides:

As Peconic Landing has established a NO TIPPING POLICY, residents may show their appreciation for good service by contributing to the Employee Appreciation Fund. Please see the "Tipping/Gratuities" section. Monies donated to this fund are distributed to staff, [*3]typically at the end of the year, based on a fair and equitable plan approved by a resident committee. Residents may contribute to this fund at any time during the year. All donations are kept confidential.

[Emphasis added]

From the above, as all three witnesses are members of the class of people who may benefit from the Employee Appreciation Fund, there was a "beneficial disposition" to them. For this reason, pursuant to EPTL § 3-3.2(a)(1) and (2), the bequest under Paragraph FIFTH is void.

Conclusion

Upon review of the papers filed herein, the court finds that the propounded instrument was duly executed and, at the time of such execution, the decedent was in all respects competent to make a will and not under restraint. The genuineness of the will and the validity of its execution having been shown to the satisfaction of the court, probate is granted (EPTL 3-2.1; SCPA 1408). While there is nothing in the record or otherwise to suggest that the employee/witnesses herein had any knowledge of the contents of the will or the potential for any benefit to them, as discussed above and pursuant to EPTL § 3-3.2(a)(1) and (2), the bequest under Paragraph FIFTH must be declared void.

Letters testamentary shall issue to petitioner upon qualification and without bond, as the same is dispensed with, according to law.

Upon the issuance of letters testamentary, the preliminary letters testamentary issued by this court on April 25, 2012, shall be revoked.

Decree signed.

JOHN M. CZYGIER, JR., Surrogate