Matter of Grubb

[*1] Matter of Grubb 2020 NY Slip Op 51054(U) Decided on August 24, 2020 Surrogate's Court, Erie County Mosey, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 24, 2020
Surrogate's Court, Erie County

In the Matter of the Estate of Janice Mae Grubb a/k/a JANICE M. GRUBB, Deceased.



2018-2067/A



MICHAEL G. COOPER, ESQ.

Appearing for Petitioner Kellie M. Harvey

COLE, SORRENTINO, HURLEY, HEWNER & GAMBINO, P.C.

Attorneys for Objectants Karen Laubenthal and Michele Mikucki

Thomas F. Hewner, Esq. of counsel
Acea M. Mosey, J.

Janice M. Grubb [hereafter, decedent] died March 25, 2018 at the age of 76. Her husband Donald had predeceased her, and she was survived by her daughter, Kellie M. Harvey [hereafter, Kellie], and her son, Timothy P. Walsh [hereafter, Timothy].

Decedent's Last Will and Testament, dated February 9, 2010, left her entire estate to Kellie and disinherited Timothy. The Will also nominated Kellie as executor.

Kellie filed a petition on November 20, 2018, seeking to probate the 2010 Will, and a citation was issued to Timothy returnable December 20, 2018.[FN1] The citation was also issued to decedent's step-daughters, Karen Laubenthal and Michele Mikucki, who were adversely affected by the terms of the 2010 Will.[FN2]

Preliminary letters were issued to Kellie on November 27, 2018 so that she could continue a personal injury action, Grubb v. Shelvay [Erie County Supreme Court, index no. 813341/2017]. On January 7, 2019, Karen and Michele [hereafter, movants] filed a pre-answer motion (see CPLR 3211) to deny probate to decedent's 2010 Will, alleging that it had never been duly executed within the requirements of EPTL 3-2.1 [a][1].

Following the return date of the motion, the parties agreed that an evidentiary hearing was needed on the issue raised by objectants. An SCPA 1404 hearing was conducted on April 11, 2019, and further testimony was taken on September 24, 2019, both essentially limited the "due execution" issue. Thereafter, the parties submitted further legal papers, and the dismissal motion has been finally submitted.

I now find and decide as follows.

(A)

(i)

From the inception of these proceedings, objectants Karen and Michele have maintained, as their sole reason for why this Court should not admit decedent's 2010 Will to probate and should dismiss Kellie's petition, that due execution of the Will did not occur as statutorily required. Specifically, objectants assert the following:

"The record here clearly shows that Janice M. Grubb did not sign her Last Will and Testament in accordance with EPTL §3-2.1. Her initials at the bottom of the signature page, below a blank signature line, were not intended to execute the will but rather to affirm that all pages of the will were accounted for and that she reviewed all the pages."

Petitioner, however, argues that:

"On the face of the document and from the testimony of the witnesses, it has been established that the decedent did sign the will by affixing her initials to the bottom of each page, in her own cursive handwriting, with the intent that the document become her last will and testament. That signature is valid under New York law."

(ii)

The 1404 testimony establishes that, following an office conference, Lisa Allen, Esq. sent decedent a first draft of her new Last Will and Testament on June 1, 2009. On February 3, 2010, Allen made revisions to that draft and sent those back to decedent, and on February 9, 2010, decedent came to Allen's office to execute the Will.

Judy Wagner [hereafter, Wagner], an attorney who worked at Allen's firm, supervised the Will execution ceremony and acted as a witness with paralegal Deanna Batcho [hereafter, Batcho].[FN3] Wagner has testified that she follows the same procedure for all Will execution ceremonies, and she had no reason to believe she deviated from standard procedure during this [*2]ceremony:

"A. What I would normally do is go over the - - go over the will with the client paragraph by paragraph and explain the contents of the will, make sure that there is complete understanding by the client of what their will says, answer any - - answer any questions that they have and once I'm satisfied that they have a complete understanding of the document and are happy with the way that the document reads, I will ask the client to declare that this is their Last Will and Testament and in doing so do they revoke all previous wills that they've made during their lifetime and do they ask that the - - that the other witness and I act as their witnesses. And I also ask if they have read and they understand the contents of the document."

Batcho also described the procedure that Wagner follows:

"A. It would be myself and the attorney and we would go through the will, or the attorney would, paragraph by paragraph and as we completed each page they initialed the lower left-hand corner.Q. Okay. And was that procedure followed in every single case?A. Yes.Q. How about the execution itself, what would happen? You'd go through line by line the will - -A. Correct.Q. - - with Ms. Grubb?A. Uh-hum.Q. And at the end of each page it's your testimony that the testator would initial each page?A. Correct.Q. What was the purpose of that, do you know?A. It was them acknowledging that they have seen each page.Q. Okay. And were there certain questions that were asked on each and every time you were asked to witness a will?A. Yes.Q. Can you describe for the Court what that procedure was?A. Sure. Four questions. Have you read and reviewed - -have you read and understood this will? Are you declaring it to be your new Last Will and Testament? Are you revoking prior wills? And are you asking - - the attorney's name - - and Deanna to be a witness?Q. And to your knowledge that procedure was followed in this particular case as well?A. Yes."

Batcho further stated that she would always be with the attorney throughout the process:

"Q. Okay. But during the actual execution of the document, the initialing, you'd both be present?A. Yes."

Wagner testified that the purpose of having a testator initial in the bottom corner of each page of a Will was to have the testator "acknowledge that the entire document makes up what [*3]they intend to be their Last Will and Testament." Wagner also stated that she would not have signed the attestation clause and proof of Will if decedent had not reviewed the instrument, declared it to be her Last Will and Testament, and executed it in the presence of the witnesses. Wagner maintained at the 1404 hearing that decedent did, in fact, sign her Will:

"A. My position is that she signed using her initials.Q. Well, she executed; she never signed. She never signed her - - she never signed her name to this document, correct?A. Just signed using her initials.Q. In the left-hand corner?A. Yes, at the end of the document" (emphasis added).

(B)

Objectants contend that this Will was not duly executed. They allege that when decedent placed her initials on the bottom corner of each page of the document, including on the page where there is a signature line which was left blank, this did not constitute signing the Will within the requirements of EPTL 3-2.1 (a)(1).

This was an attorney-supervised Will execution ceremony, and, therefore, there is a presumption that all statutory requirements were met (see e.g. Matter of Tuccio, 38 AD3d 791 [2007] and Matter of Mooney, 74 AD3d 1073, 1074 [2010]). Further, there are self-proving affidavits signed by Wagner and Batcho, which, together with the attestation clause, support the presumption that all statutory requirements were satisfied. The self-proving affidavits state, in pertinent part that:

"The subscription of the name of said Testatrix at the end of said instrument was made by the Testatrix in the presence of myself and [Wagner or Batcho], the other subscribing witness thereto. At the time of such subscription, the said Testatrix declared the said instrument so subscribed by her to be her Last Will and Testament, and I thereupon signed my name as a witness at the end of said instrument at the request and in the presence of said Testatrix. I also saw said other subscribing witness, [Wagner or Batcho], sign her name as a witness at the end of said instrument and know that she did so at the request of said Testatrix and in her presence. The said Testatrix, at the time of so executing said instrument, was upwards of the age of eighteen years and of sound mind, memory and understanding and was not under any restraint to the best of my knowledge and belief in my opinion was competent to make a Will. That said Testatrix could read, write and converse in the English language and was not suffering from any defect of sight, hearing or speech or from any physical or mental impairment which would affect her capacity to make a valid Will. The Testatrix signed only the original of said Will on said occasion. He said Last Will and Testament was executed by the Testator under the supervision of Judy. N. Cuzzacrea Wagner, who Is an attorney-at-law licensed to practice in the State of New York. This instrument is being executed contemporaneously with the execution of said Will pursuant t the law in such cases made and provided."

As petitioner correctly points out, §46 of the General Construction Law provides that "[t]he term signature includes any memorandum, mark or sign, written, printed, stamped, photographed, engraved or otherwise placed upon any instrument or writing with intent to [*4]execute or authenticate such instrument or writing" (emphasis added).

In Matter of Kenneally, 139 Misc 2d 198, 199 [1988], former Nassau County Surrogate Judge Radigan noted that: "A will can be signed with initials, the testator's mark (Jackson v. Jackson, 39 NY 153; Matter of Irving, 155 App Div 728, aff'd 207 NY 765) or any lines visible on pages (Matter of Golicki, 116 Misc 100)."

Similarly, in Matter of Kilanowski, NYLJ, Nov. 13, 1998, at 27, col 5, 1998 NYLJ LEXIS 5008, Kings County Surrogate Judge Feinberg observed that:

"The pertinent statute, EPTL 3-2.1, does not specify the type of signature required of a testator. In fact, any visible indication of adoption, placed on the instrument by the testator, is a sufficient compliance with this phase of the statutory requirements for due execution if the particular testator intends it as a demonstration of his acceptance of the document (Matter of Arcowsky, 171 Misc 41, 42). Thus, under the appropriate circumstances, a testator may validly sign a will through the use of his initials (Matter of Kenneally, 139 Misc 2d 198), his fingerprints (Matter of Arcowsky, 171 Misc 41, supra) or, as in the case at bar, his cross-mark (Jackson v. Jackson, 39 NY 153)" (emphasis added).

And, in Matter of Albert, NYLJ Apr. 24, 2013, at 30, col 3, 2013 NYLJ LEXIS 1646, the Court had before it a Will where the testator had signed the document "by fingerprint":

"Courts have held that signature by fingerprint is more individual, reliable, and effective than one made by a mere cross mark, which had long been uniformly upheld (Arcowsky, 171 Misc at 42; Romaniw, 163 Misc at 490, citing e.g. Jackson, 39 NY at 159, Golicki, 116 Misc at 100-02). The central inquiry is whether 'such mark or designation was intended by the affixing party to serve as his or her signature' (William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh, 99 AD3d 270, 277 [2nd Dept 2012] citing General Construction Law §46). Here, petitioner has sufficiently demonstrated that the decedent intended to use his fingerprint as his signature."

As the limited 1404 hearing testimony in this case makes clear, decedent came to Allen's law office on February 9, 2010 for the express purpose of executing her Will. After reviewing the Will with decedent, Wagner asked decedent to declare that the document was her Last Will and Testament, which decedent did, and Wagner also had decedent "initial each page to acknowledge that the entire document [made] up what [decedent] intended to be [her] Last Will and Testament."

Thus, I find and conclude that decedent unequivocally intended the February 9, 2010 instrument now being propounded by petitioner was her Last Will and Testament and that it was validly signed and executed by decedent by initialing each page of the Will, including the page on which the blank signature line appears.

(C)

Accordingly, because I am satisfied that decedent complied with the statutory requirements for due execution of her Will, objectants' pre-answer motion to dismiss Kellie's probate petition must be, and it hereby is, denied.

Finally, I hereby set this matter down for a status conference with counsel for the parties on Wednesday, September 16, 2020, at 11:00 a.m. to schedule what next needs to be done to bring this probate matter to conclusion.

This decision shall constitute the Order of this Court and no other or further order shall be required.

DATED: August 24, 2020

BUFFALO, NEW YORK

_____________________________

HON. ACEA M. MOSEY

Surrogate Judge Footnotes

Footnote 1:A supplemental citation was issued to Timothy, returnable January 29, 2019, which was properly and timely served on him.

Footnote 2:Decedent had a prior Will, dated February 2, 2005. That Will left decedent's entire estate to her husband Donald but provided that, if he predeceased her, the estate would go equally to Kellie, Karen and Michele.

Footnote 3:Although Allen was present for the ceremony, she did not supervise it or act as a witness because she was named in the Will as a successor executor.