Estate of Leslie, 2013-2117
Cite as: Estate of Leslie, 2013-2117, NYLJ 1202639806950, at *1 (Surr., BX, Decided December 26, 2013)
Surrogate Nelida Malave-Gonzalez
Decided: December 26, 2013
This is an uncontested proceeding to probate an eight-page testamentary instrument dated September 21, 2010. While the decedent's signature appears at the bottom of every page of the instrument, no signature appears on the designated signature line which follows all of the dispositive provisions of the instrument.
The decedent died on July 29, 2013 at the age of 73. The decedent's distributees are two sons and a daughter, none of whom filed objections to the admission of the instrument to probate. The instrument is not attorney supervised, it nominates a friend as the executor and provides, inter alia, that: the daughter is to receive two rings and 40 percent of the residuary estate; one of the sons, Jonathan, is to receive 20 percent of the residuary; a friend, Jefferson Sampson, is to receive 10 percent of the residuary; one grandson is to receive 15 percent of the residuary and three other grandchildren are to receive 5 percent each of the residuary. Although the decedent's signature appears
at the bottom of page 7, no signature appears on the designated line on page 7 immediately following the declaration paragraph which is the only matter that appears on page 7, Notwithstanding the failure of the decedent to sign on the designated signature line on page 7, her signature appears at the bottom of every page of the instrument, and on page 8, the last page of the instrument, her signature is notarized and dated below the attestation clause and below the signatures of the attesting witnesses. Although no "self proving" affidavit of the two attesting witnesses is annexed to the instrument, affidavits were filed by the attesting witnesses "after death" (see SCPA 1406). Those affidavits do not mention that the witnesses were aware that the decedent failed to sign on the designated signature line on page 7 of the instrument.
In support of admitting the instrument probate, proponent's counsel affirms, inter alia, that: (1) it appears the instrument was prepared by the decedent herself and was not attorney drafted or supervised; (2) it was executed in front of two witnesses and was signed by the decedent at the bottom of each page, including the signature page (page 7); (3) the decedent inadvertently failed to sign on the signature line on page 7 or enter the date of the will on page 7; (4) the date of execution was entered by each of the witnesses and signed by the decedent on page 8, albeit the decedent signed after the signatures of the witnesses; and (5) the fact that the decedent did not sign on the specified signature line of page 7 or before the signatures of the witnesses on page 8 should not preclude the admission of
the instrument to probate.
EPTL 3-2.1 (a) (1) provides that a will "shall be signed at the end thereof by the testator…." EPTL 3-2.1 (a) (1) (B) provides that "[N]o effect shall be given to any matter, other than the attestation clause, which follows the signature of the testator…." EPTL 3-2.1 (a) (4) provides that the attesting witnesses are to sign their names "at the end of the will." The statutory requirement that the instrument be signed at the end is to prevent fraudulent additions (see Matter of Mackris, 124 NYS2d 891, 892 [Sur Ct, NY County 1953], 1953 NYMisc Lexis 2262 *2 ); see also Margaret V. Turano, Practice Commentaries, McKinney's Cons Laws of NY, Book 17B, EPTL 3-2.1, page 6, where it is stated that "[T]his requirement of signing at the end reflects New York's prohibition against the incorporation by reference into a will of unattested documents…"). As stated in Matter of Lewandowski (60 Misc 2d 1005 [Sur Ct, Bronx County 1969]), the requirements that the signatures of the testatrix and of the attesting witnesses appear at the end of the will "…when read together mandate no more than that both the testatrix' signature and that of the witnesses be after all the operable portions of the will…."
In this proceeding there are no attached documents to the propounded instrument sought to be admitted to probate and there are no dispositive provisions appearing after the attestation clause and after the decedent's signature at the bottom of page 7, or after her signatures on page 8. There is no attempt to circumvent the decedent's wishes as stated
in the propounded instrument or anything which would appear to be contrary to the statutory scheme which would make the failure of the testator to sign on the designated signature line fatal to admission to probate (see Matter of Bochner, 119 Misc 2d 937 [Sur Ct, Bronx County 1983] [probate granted where there was no signature of the testator on the designated line but her notarized signature appears following the signatures of the attesting witnesses]; see Matter of Mackris, 124 NYS2d 891[Sur Ct, N Y County 1953], 1953 NYMisc Lexis 2262 [probate granted where the signatures of the attesting witnesses appear on page 2 of the instrument while the decedent's signature appears on page 3]; cf. see Matter of Zaharis, 59 NY2d 629  [probate denied where signature did not appear anywhere at the end of the instrument, despite room at the end of the instrument, but rather sideways in the margin on the first side]).
The court is satisfied that the instrument satisfies the requirements of EPTL 3-2.1 and that, at the time of execution, the decedent possessed testamentary capacity and was not under any restraint. Accordingly, the instrument dated September 21, 2010 is entitled to be admitted to probate.