Matter of Neller

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[*1] Matter of Neller 2013 NY Slip Op 51325(U) Decided on August 13, 2013 Sur Ct, Richmond County Gigante, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 13, 2013
Sur Ct, Richmond County

In the Matter of the Estate of Mary Neller, Deceased.


Attorney for Petitioner: John Newman, Esq. (516) 280-3280

Attorney for Objectants: Michael Camporeale, Esq. (718) 273-4574

Robert Gigante, J.

Mary Neller, a resident of Richmond County, died on July 28, 2009 survived by eighteen distributees, children and grandchildren, who are the offspring of predeceased children of the decedent. On August 15, 2012, decedent's daughter, Georgianna Neller petitioned this Court to probate a handwritten Will dated April 25, 1989. The Will reads as follows:

To Whom It May Concern: In the event of my death. I want my daughter Georgianna E. Coppins. Have my house, car and all its belongings to do as she sees fit. Anyone that owes me any amount of money including herself must deduct the said amount. Only if the house is ever sold for a large amount. Then also if Georgianna does repairs or improvements, that also should be deducted. I Mary C. Neller being of sound mind do so request this order. If the house is really sold for a large amount, then I would like my Grandchildren including Paulies Jo Ann and James. All receive $100 each, also my greatgrandchildren [sic]. By then whats [sic] left can be devided [sic] 7 ways. I worked side by side with Dad. No one else did. God Bless all my children. I beg everyone some day speaks to each other before I die or at my wake. Always any one in need be there for each other. All my life I made up to everyone. Even Uncle John must be right never me. My brother died he did not speak to him either. Love each other always. Love & Kisses, Mom.

This handwritten Will includes indecisive and vague phrases regarding the disposition of assets, specifically regarding the disposition of the decedent's house. Further, the will is filled with grammatical and syntax errors to the extent that sentences are often broken into fragments with improper use of punctuation. Two witnesses, who have since died, allegedly signed the will on a separate sheet of paper without providing printed names, dates, or addresses.

On November 27, 2012, Paul P. Neller and Frances Valek, son and daughter of the [*2]deceased, submitted objections to the probate of the will, including multiple objections regarding its contents and improper execution. Objectants further claim that the will was procured by undue influence, that the testator was not of sound mind or memory at the time of execution, that the testator did not possess testamentary capacity, and that the will is a forgery.

In the within motion, the Objectants, by Order to Show Cause, inter alia, seek the authority to bring an eviction proceeding against Georgianna and William and to revoke Temporary Letters of Limited Administration issued to Petitioner. On June 12, 2013, the return date of the Order to Show Cause, the Court heard oral argument from counsel, and has considered all affidavits submitted both in support of and in opposition to the motion. Revocation of Temporary Letters of Limited Administration

Objectants seek to have the letters of limited administration issued to Petitioner revoked. The letters, issued on January 29, 2013, permitted the Petitioner "solely to purchase homeowner's insurance for the real property located at 196 Livingston Avenue" for a term of six months. While Objectants have raised a number of issues, which will be addressed with regard to the probate of the document and future rights to the administration of the Estate of Mary Neller, there is currently no need to revoke the limited letters awarded to Petitioner. The letters granted were solely for the purpose of purchasing homeowner's insurance, and Petitioner has exercised that authority. Revoking the letters would have no impact on the future administration of the estate, especially given the fact that the letters expired on July 29, 2013 and have not been renewed. Therefore, that branch of Objectants' motion seeking to revoke the Temporary Letters of Limited Administration issued to Petitioner is denied.

Probate of the Neller Will

a. Will Requirements Generally

Objectants have filed multiple objections to the instrument being offered for probate. The Court finds that certain will formality issues are ripe for review in order to move this proceeding forward. The rules governing the proper execution of wills, including the formalities that must be followed can be found in EPTL § 3-2.1. In relevant part, EPTL § 3-2.1 provides that every will must be in writing and signed by the testator, with such signature affixed in the presence of attesting witnesses. The testator must also state in the presence of witnesses that the will is indeed their will and the attesting witnesses must sign thereafter. The fact that a will is handwritten does not prevent it from being probated (see Matter of Lubitz, 207 Misc33 (Surr Ct Kings Cty [1954]). There is no requirement that a will be typed.

However, the other formal requirements of due execution pursuant to EPTL § 3-2.1 must be satisfied. Typically, there is a presumption of validity when an attorney supervises the execution a will (see Matter of Kindberg, 207 NY 220 [1912]; see also Matter of Finocchio, 270 AD2d 418 [2d Dept 2000]). However, the execution of the instrument currently before the Court was not supervised by an attorney and therefore lacks the presumption of due execution (see Matter of Liquori, NYLJ, Mar 1, 2001, at 22, col 4 [Sur Ct Kings Cty]). Here, the will is in writing pursuant to § 3-2.1(a)(1). It is also signed at the end by the testator pursuant to § 3-2.1(a)(1) (see Matter of Winters, 302 NY 666 [1951]). However, we do not know whether the testator signed in the presence of the witnesses or acknowledged her signature to each of them pursuant to § 3-2.1(a)(2). There is also no [*3]proof that the testator declared that the instrument was her last will and testament before the witnesses pursuant to § 3-2.1(a)(3).

Pursuant to EPTL 3-2.1(a)(4), attesting witnesses are also required to, within one thirty day period, 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. Here, the witnesses failed to provide their printed names, addresses, or date of signature. However, EPTL 3-2.1(a)(4) specifically states that "[t]he failure of a witness to affix his address shall not affect the validity of the will." While § 3-2.1 also requires that the witnesses actually be present when the testator signs the will, both witnesses have since passed and there is no way of deposing them to discover whether they were actually there to attest to the testator's signature or whether they signed their names at the request of the testator. Often times, attestation clauses (also known as self-proving affidavits) are affixed to wills pursuant to SCPA 1406 to give a presumption of validity to witness signatures, especially in a case such as this where the witnesses predecease the testator (see Matter of Yenei, 132 AD2d 870 [3d Dept. 1987]). However, there is no such affidavit of attesting witnesses here, and therefore there is no presumption of validity to the procedures required by EPTL 3-2.1(a)(4). Finally, pursuant to SCPA 1408(1), the Court must inquire particularly into all the facts and must be satisfied with the genuineness of the will and the validity of its execution before admitting the will to probate. Given the inability of Petitioner to establish that the will execution adhered to the formalities of EPTL § 3-2.1, this Court is far from satisfied with the instrument offered for probate.

b. Probate as an Ancient Document

The Petitioner has also asked the Court to admit this instrument to probate as an "ancient document." The doctrine of ancient documents has been used as a mechanism to nonetheless probate a will where the witnesses are deceased or otherwise unavailable. The purpose of the ancient document exception as set forth in Matter of Hehn, 6 Misc 2d 801 [Surr Ct Nassau Cty 1957]) is two-fold: First, after a long lapse of time, ordinary testimonial evidence from those who saw the document's execution or knew the style of handwriting or heard the party admit the execution is practically unavailable, and a necessity always exists for resorting to circumstantial evidence. Secondly, the circumstance of age or long existence of the document, together with its place of custody, its unsuspicious appearance, and perhaps other circumstances, suffice, in combination, as evidence to be submitted to the jury.

A propounded instrument will be admitted to probate as an ancient document "if the [w]ill offered for probate is more than thirty years old, the genuineness of its execution can be established by its unsuspicious appearance," and after looking to "other circumstances" (Matter of Ricciardi, NYLJ, Mar 26, 2010, at 42, col 2; citing Matter of Barney, 185 AD 782 [1st Dept 1919]). In fact, this Court follows the Federal Rules of Evidence, which provides that an instrument need only be twenty years old to be considered an ancient document. However, although the within instrument is over twenty years old, the grammatical errors, unclear statements, handwritten nature of the proposed will, and its general appearance, do not constitute an instrument that is "unsuspicious" in appearance. Further, in terms of [*4]where the will was kept during the testator's lifetime, the motion papers make no mention of the will's location since its creation, nor of where it was found. For these reasons, the Court cannot conclude that the will is unsuspicious in nature, or that it was found in a natural place of custody. Because the document does not meet the requirements of the ancient document exception, and the will's due execution cannot be proven due to the death of the witnesses, probate of the Will must be denied.

Furthermore, in terms of the substance of the document, the purported will contains numerous vague and even contradictory statements. In particular, when the testatrix stated certain distributions should only be made "if the house is ever sold for a large amount" or if the house is "really sold for a large amount" [emphasis added], the language is far too vague and inconclusive to create a binding and effective will. Indeed, much of the language in this instrument is precatory in nature, and inconsistent with the language required in a will. Other statements such as "I worked side by side with Dad. No one else did. God bless all my children. I beg everyone some day speaks to each other " are by no means definitive of testator's intent. Finally, Neller signs the will "Love and Kisses, Mom." Some Courts have been particularly hesitant to probate a will when it "is unartfully drawn, and a literal interpretation of its language is not necessarily determinative" (see Matter of Pascal, 309 NY 108 [1955]). Though this Court often looks to the principles of fundamental fairness and equity when discerning a testator's true intent, there is an initial level of formality one must achieve when executing a will. This instrument does not even come close to meeting the requisite level of formality.

Accordingly, since decedent's Will fails to meet any of the formal execution and attestation requirements, the Court, sua sponte, denies the petition for probate.

Petition for Letters of Administration

Letters of administration may issue to family members of the deceased pursuant to SCPA §1001 in order to distribute the assets of her estate. There is a pending petition for letters of administration by Objectants in the Court's file. Any other interested party who wishes to serve as administrator of this estate is hereby directed to file a petition for letters of administration within thirty (30) days of the date of this Decision and Order. This matter is restored to the Calendar of the Court for 9:30 a.m. on October 2, 2013 for control purposes.

This decision shall constitute the Order of the Court. Proceed accordingly.

Dated: August 13, 2013______________________________


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