• Surrogate's Court, Bronx County
  • Jan 23 2013 (Date Decided)
  • Surrogate Malave Gonzalez

ESTATE OF LEONARD KASDAN, Deceased — This is an uncontested proceeding to probate, as an ancient document, an instrument dated April 28, 1973. The decedent died on March 15, 2012. His distributees are a spouse, who is the nominated fiduciary and the sole residuary beneficiary under the instrument, and two children who consent to the application.

The three-page instrument, which is regular on its face, bears the signature of two witnesses and contains an attestation clause. The attesting witnesses, one of whom is deceased, were close friends of the petitioner and the decedent. The other attesting witness is in a nursing home, and it is questionable as to whether that witness has the capacity to sign an affidavit with regard to the execution of the instrument. Following the decedent's death, the petitioner found the instrument in an unaltered form in a place in their apartment where the decedent stored all of his important documents.

To be admitted to probate as an ancient document, a will must be more than 30 years old, unsuspicious in nature and taken from a natural place of custody (see Matter of Brittain, 54 Misc 2d 965 [1967]). Moreover, the attestation clause is entitled to weight in determining due execution (see Matter of Cottrell, 95 NY 329 [1884]).

Accordingly, as the propounded instrument meets the requisite criteria to be admitted to probate as an ancient document, a decree has been entered admitting to probate the will dated April 28, 1973.

Decree signed.

January 23, 2013