Matter of Johnson

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[*1] Matter of Johnson 2020 NY Slip Op 20193 Decided on August 5, 2020 Surrogate's Court, Dutchess County Hayes, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on August 5, 2020
Surrogate's Court, Dutchess County

In the Matter of Probate Proceeding, Estate of Brendan Colin Johnson, Deceased.


Drake Loeb PLLC

555 Hudson Valley Avenue

New Windsor, NY 12553

(845) 561-0550
Michael G. Hayes, J.

A probate petition has been filed by Anna M. Johnson, the decedent's wife and nominated Executor. The Petition requests that the instrument purporting to be the Last Will and Testament of the decedent, Brendan Colin Johnson, dated April 18, 2009, be admitted to probate. The Petition also asks that Anna M. Johnson be appointed the Executor of the Estate.

The propounded instrument is a five-page stapled document. A preamble identifies the document as a Military Testamentary Instrument pursuant to 10 USC §1044d. The first page of the document also states that it was drafted by a military legal assistance attorney assigned to the Legal Support Services Section of the Mobilization Command in Fort Worth, Texas.

The decedent and both attesting witnesses signed the bottom of every page of the document. The decedent also signed the fourth page immediately after the last dispositive provision and just before the attestation clause, which was signed by both witnesses. The fifth page is a "Military Testamentary Instrument Self-Proving Affidavit" sworn to by the attesting witnesses, and certified by the attorney who prepared the document and supervised its execution.

"The proponent of a will has the burden of proving that the propounded instrument was duly executed in conformance with the statutory requirements." [Matter of Sabatelli, 161 AD3d 872, 873 (2d Dept 2018)]. The elements of due execution are: (1) the testator signed the instrument at its end; (2) the testator signed the instrument, or acknowledged her signature, in the presence of at least two attesting witnesses; (3) the testator declared the instrument to be her will in the presence of the attesting witnesses; (4) the testator asked the attesting witnesses to sign the instrument, and they signed it within 30 days of each other. [EPTL § 3-2.1(a)].[FN1]

"Where, as here, the attorney draftsman supervised the will's execution, there is a presumption of regularity that the will was properly executed in all respects." [Matter of Tuccio, 38 AD3d 791 (2d Dept 2007)]. "The Petitioner has clearly made the requisite prima facie showing of compliance with the last three elements of due execution. The only remaining question is whether the testator's signature on the bottom of each page of the instrument runs afoul of the statutory requirement that the testator's signature appear at the end of the will. The answer to this question must be determined as a matter of law. [Matter of Zaharis, 91 AD2d 737, 737 (3d Dept 1982), aff'd 59 NY2d 629 (1983)].

EPTL 3-2.1(a)(1) "mandates that the testator must sign the will 'at the end thereof' thus retaining a requisite formality which has continued for well over a century."[id. at 737]. "This statutory provision requiring the subscription of the name to be at the end is a wholesome one and was adopted to remedy real or threatened evils." [id. at 737. See also Younger v. Duffie, 94 NY 535, 539 (1884) ("The purpose of the law which requires the subscription to be at the end of the will is to prevent fraudulent additions to a will before or after its execution")].

While this statutory purpose is undeniably worthy, it has also been long recognized that "[f]orm should not be raised above substance in order to destroy a will." [Matter of Field, 204 NY 448, 457 (1912)]. Here, the proponent does not rely on the signatures that appear at the bottom of each page. Instead, the proponent solely relies upon the signature that appears in the body of the fourth page, after the last dispositive provision and before the attestation clause. [see Matter of Jarvis, 124 Misc 563, 564 (Sur. Ct. Erie County 1925)].

Under these circumstances, the signatures appearing on the bottom of each page of the document do not engender any concern that there has been an attempt to circumvent the decedent's wishes or to evade the statutory scheme. [see Matter of Leslie, NYLJ, Jan. 17, 2014 (Sur Ct Bronx County)]. Rather, by placing his signature on the bottom of each page, the testator merely sought to authenticate each page of the stapled document by contemporaneously adding his mark thereto. Seen in this light, the signatures that appear on the bottom of each page promote, rather than defeats, the statute's laudatory purposes.

"A presumption of compliance with the statutory requirements also arises where a propounded will contains an executed attestation clause and a self-proving affidavit." [Matter of Greene, 89 AD3d 941, 943 (2d Dept 2011)]. Here, the witnesses signed an attestation clause stating that the decedent signed, published and declared the instrument to be his last will and testament in their presence, and that on that same date the witnesses signed the attestation clause at decedent's request and in his presence. The attestation clause is complete, the signatures are genuine, and the circumstances surrounding this attorney-supervised signing ceremony support a finding that the instrument was duly executed. [Matter of Christie, 170 AD3d 718, 719 (2d Dept. 2019); Matter of Costello, 136 AD3d 1028 (2d Dept. 2016)].

Although the "Military Testamentary Instrument Self-Proving Affidavit" does not mimic New York's official form, the use of official forms is not mandatory. Rather, the use of an official [*2]form merely triggers SCPA §106, which requires every Surrogate's Court to accept the official forms for filing. While this safe harbor provision creates a significant incentive to use the official forms, a legally sufficient document will not be rejected simply because it does not follow the official form. To do otherwise would place form over substance. In any event, to the extent there is a question as to whether the military self-proving affidavit is sufficient, the failure to produce a self-proving affidavit does not preclude the presumption of regularity from attaching to the proffered instrument because the attestation clause is complete and the circumstances corroborate due execution. [Matter of Shapiro, 121 AD3d 1454 (3d Dept. 2014)].[FN2]

Finally, even if compliance with New York's rules of execution and attestation had not been established, the proffered instrument would still be admitted to probate on the separate and distinct grounds that it was properly executed as a Military Testamentary Instrument. As such, it is exempt from the requirements of form and formality under New York law, and has the same force and effect as a testamentary instrument that was prepared and executed in compliance with New York's rules of execution and attestation. [10 USC §1044d(a)].

Specifically, as part of the National Defense Authorization Act for 2001, Congress created the Military Testamentary Instrument. When prepared and executed in accordance with federal law and the applicable Department of Defense policies, the proponent of a military will is relieved of any obligation to demonstrate that the instrument was duly executed in compliance with state law formalities. [10 USC §1044d(a); Department of Defense Directive 1350.4, April 28, 2001].

To qualify for this exempt status, certain federal statutory and regulatory formalities must be followed:

The instrument must bear a Military Testamentary Preamble in the form provided by the Department of Defense Directive;

The instrument must be executed by a person who is eligible for military legal assistance (including active duty and retired members of the armed forces, and their dependents);

The execution of the instrument must be notarized by a military legal assistance counsel, or by a notary who is supervised by military legal assistance counsel;

The instrument must be executed in the presence of at least two disinterested witnesses (in addition to the notary), each of whom must attest to witnessing the testator's execution by signing the instrument; and

The instrument must be accompanied by a Military Testamentary Instrument Self-Proving Affidavit in the form provided by the Department of Defense Directive.

Here, the proffered instrument meets each of these requirements. It bears the requisite Military Testamentary Preamble. The testator was in the active service of the United States Armed Forces when he executed the instrument in the presence of two disinterested witnesses. The military legal assistance counsel who prepared the instrument supervised its execution and notarized the signatures of the testator and witnesses. The instrument is also accompanied by a Military Testamentary Self-Proving Affidavit in the required form. Therefore, the proffered instrument is exempt from the requirements of due execution under New York law, and may proceed to probate as a Military Testamentary Instrument executed in accordance with federal law.

Finally, at least one commentator has questioned whether the federal government has the constitutional authority to exempt Military Testamentary Instruments from compliance with state law testamentary formality requirements. [Bamberger, Are Military Testamentary Instruments Unconstitutional? Why Compliance With State Testamentary Formality Requirements Remains Essential, 196 Military Law Review 91 (Summer 2008). But see Waggoner, The Creeping Federalization of Wealth-Transfer Law, 67 Vanderbilt Law Review 1635, fn. 110 (concluding that "the federal military-will statute is almost certainly constitutional under the war powers granted to Congress by Article 1 Section 8"); Major Jonathan E. Cheney, Beyond DL (Drafting Libraries) Wills, The Army Lawyer (October 2005) ("This primer assumes the constitutionality of §1044d, while recognizing that the issue is not definitively resolved"); Beyer, Smith & Owens, Introduction to Military Wills (2003) (archived at (observing that, although the issue would be one of first impression, "a challenge to §1044d seems unlikely under the Tenth Amendment" given Congress's broad and sweeping powers to regulate the military under Article 1 §8 of the Constitution)].

Several states have eliminated any question as to whether a valid Military Testamentary Instrument will be admitted to probate by their respective courts. This has been accomplished by enacting state legislation providing that a military will executed in compliance with §1044d will be deemed to have been legally executed, and will be given the same force and effect as if it was executed in compliance with that state's testamentary formalities [See e.g., Florida Statutes §732.502; North Carolina General Statutes §§ 31-46, 31-11.6; Vermont Statutes Title 14 §7].

The New York State Legislature has not yet enacted legislation extending similar treatment to Military Testamentary Instruments executed in compliance with federal law. And there do not appear to be any reported decisions in any of the fifty states addressing the Tenth Amendment concerns that have been raised with respect to §1044d. Therefore, consistent with the Surrogate's independent obligation to determine whether a propounded will should be granted probate, the Court will briefly examine that question.

The Tenth Amendment provides that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Because the Constitution does not delegate the authority to regulate testamentary matters to the federal government, and does not prohibit the individual states from exercising that power, the authority to regulate testamentary matters has long been recognized as a power that has been reserved to the states. [See United States v. Burnison, 339 US 87, 91-92 (1950) (citing "a long line of cases which have consistently held that part of the residue of sovereignty retained by the states, a residue insured by the Tenth Amendment, is the power to determine the manner [*3]of testamentary transfer of a domiciliary's property and the power to determine who may be made beneficiaries")].

However, although the power to regulate testamentary matters "is an area normally left to the States, it is not immune under the Tenth Amendment from laws passed by the Federal Government which are... necessary and proper to the exercise of a delegated power." [United States v. Oregon, 366 US 643, 649 (1961). See also Matter of Weaver, 97 Misc 2d 72, 76 (Sur. Ct. Rensselaer County 1978)].[FN3] These delegated powers include the so-called War Powers Clause contained in Article 1 §8 Clause 11, which vests Congress with the exclusive authority to raise and support armies and navies. The Supreme Court has consistently acknowledged that these powers are "broad and sweeping" and involve "complex, subtle, and professional decisions as to the composition, training, equipping and control of a military force" that are entitled to substantial deference. [Rostker v. Goldberg, 453 US 57, 65-66 (1981), quoting United States v. O'Brien, 391 US 367, 377 (1968) and Gilligan v. Morgan, 413 US 1, 10 (1973)]. Indeed, "perhaps in no other area has the Court accorded Congress greater deference." [Id. at 64-65].

For instance, the Supreme Court has observed that "Congress undoubtedly has the power — under its constitutional powers to raise armies and navies and to conduct wars — to pay pensions, and to build hospitals and homes for veterans." [United States v. Oregon, 366 US 643, 648 (1961). Although the power to regulate the disposition of a testate or intestate decedent's estate is normally reserved to the states under the Tenth Amendment, the Supreme Court ruled that a federal law directing that the property of a veteran who dies in a VA facility without a will and without legal heirs escheat to the federal government for the support of other VA facilities (in contravention of a state law directing that the decedent's property escheat to the state) was necessary and proper to Congress's exercise of the powers delegated to it in the War Powers Clause [id. at 649].

The tragic events that served as motivation for Congress's enactment of §1044d bring the nexus between a federal military will law and the War Powers Clause into sharp relief. On December 11, 1985, a chartered airplane crashed on takeoff from Gander, Newfoundland, killing 248 members of the 101st Airborne Division who were returning home from a six-month peace-keeping deployment in the Sinai Desert. It was later discovered that a number of wills prepared by military lawyers prior to this large-scale deployment failed to comply with the execution requirements of the states where they were ultimately filed, causing those wills to be denied probate and the deceased soldiers' property to be distributed in a manner other than as directed in their propounded wills. [Bamberger, Are Military Testamentary Instruments Unconstitutional?, supra at 103-04].

The grave risks that members of our armed services take in service to our country are starkly illustrated by the Department of Defense policy that requires commanding officers to "urge" their military personnel to seek estate planning from legal counsel prior to mobilization, deployment or similar activities [Directive 1350.4, §4.1.3]. And the seismic disruptions that have [*4]become a routine part of military life undeniably impose unique challenges and hardships on our soldiers and their families. Accordingly, as the Gander crash poignantly demonstrated, "military personnel have a special need for probate procedures which take into account their frequent reassignments and their susceptibility to short-notice deployment. [See Beyer, Smith & Owens, Introduction to Military Wills, supra at 3, quoting Major Gene Martin, Exemption of Military Wills from State Law Requirements: Where There is a Will, is There a Way? at 6].

Congress created the Military Testamentary Instrument to fill that need. As such, §1044d reflects a legislative determination that providing the members of our armed services, and their dependents, with a clear path to achieving an effective and reliable estate plan is necessary and proper to the execution of Congress's constitutional powers to raise armies and navies and to conduct wars. [See United States v. Oregon, supra at 648-49].[FN4]

The hauntingly familiar circumstances surrounding decedent's death vividly demonstrate that §1044d's creation of a Military Testamentary Instrument is a necessary and proper exercise of Congress's war powers. On July 10, 2017, Gunnery Sgt. Brendan Colin Johnson, USMC, and 15 of his fellow servicemen, were killed when their transport plane crashed in Mississippi. Although he was a resident of New York at the time of his death, he had been stationed in Texas when he executed the Military Testamentary Instrument, he was a veteran of the Afghanistan and Iraq wars, he died in the service of his country in Mississippi, and he was contemplating a move to Montana upon his impending retirement from military service [NY Times, Marine Corps Plane Crash: The 16 Victims, July 13, 2017; Poughkeepsie Journal, Services Set for Fishkill Marine Killed in Plane Crash, July 25, 2017].

In the absence of the special protections that §1044d affords to Military Testamentary Instruments, Gunnery Sergeant Johnson's will would have been needlessly exposed to the risk that a document expressing his wishes that was prepared by a military lawyer during one of countless assignments over the course of a distinguished career might not meet the particular execution and attestation requirements of the state where it was eventually offered for probate. That is precisely the fate that befell the wills of a number of servicemen who perished in the Gander crash, and Congress was acting well within its war powers when it sought to minimize that risk by relieving the proponent of a validly executed Military Testamentary Instrument of the obligation to demonstrate that it was executed in compliance with state law formalities.

The Court finds no legal reason why the Will may not proceed to probate. The probate application being without opposition; proofs having been duly filed on behalf of the attesting witnesses to the foregoing testamentary instrument; and it appearing that such proofs were duly [*5]executed and are genuine and valid; and that the decedent at the time of executing the same was in all respects competent to make a will and not under restraint; it is

ORDERED AND DECREED, that the genuineness of the will, dated April 18, 2009, and the validity of its execution having been shown to the satisfaction of the Court, it is admitted to probate as the Last Will and Testament of the decedent pursuant to SCPA §1408 and EPTL §3-2.1, valid to pass real and personal property. The Will and this Decision and Decree shall be recorded, and Letters Testamentary shall issue to Anna M. Johnson upon properly qualifying for such office. Any Preliminary Letters Testamentary that were previously issued are hereby revoked.

This constitutes the Decision, Order and Decree of the Court.

Poughkeepsie, New York

August 5, 2020




To:Drake Loeb, PLLC

Attorney for Petitioner (via NYCEF)


Footnote 1: Even though this probate proceeding is not contested, the court retains an independent obligation to determine whether a propounded will has been duly executed. [Matter of Jacobovitz, 58 Misc 2d 330, 333 (Sur Ct, Nassau County 1968) (Bennett, S.) ("The Constitution and statutes impose on the judge of the surrogate's court more than just a pro forma or cursory obligation as to the testamentary capacity of the decedent, the genuineness of the will, and the validity of its execution. The law imposes upon the court the duty to determine these requirements on its own initiative... [I]f the conscience of the court is not judicially satisfied that the instrument contains the last will of the deceased, the court is bound to deny probate")].

Footnote 2: Since the proffered instrument was executed and attested in accordance with New York law, it is not necessary to determine whether it was executed and attested in accordance with Texas law before admitting the document to probate [EPTL §3-5.1(c)].

Footnote 3: The Necessary and Proper Clause, also known as the "elastic" clause, grants Congress the power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."[Article 1, §8, Clause 18].

Footnote 4: One commentator has argued that Oregon should be limited to the federal government's authority to give its claims priority under the Supremacy Clause, and that it should not serve as a vehicle to facilitate "federal intrusion into the procedural integrity of the probate process itself." [Bamberger, Are Military Testamentary Instruments Unconstitutional?, supra at 114]. However, having found that the estate planning objectives of §1044d are necessary and proper to Congress's war powers, there is no basis to treat the statutory implementation of those objectives as an unconstitutional assault on the procedural integrity of the probate process. Rather, by establishing clear-cut military will execution and attestation standards, §1044d honors the unique sacrifices of military families while simultaneously preserving the integrity of the probate process (which is to say that it preserves the integrity of the instruments offered for probate). In so doing, Congress has also taken an important step toward reducing the risk that a tragic loss of life in service to our country will be compounded by a military attorney's lack of familiarity with the requirements of form and formality under myriad state laws.

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