Introduction
An ongoing debate in estate law concerns strict versus substantial compliance with statutory formalities for wills. Several jurisdictions have moved towards substantial compliance regimes, whereby courts can admit deficient wills to probate provided they reflect the decedent’s testamentary intentions. In the 1908 decision Matter of Gibson, 128 A.D. 769, 113 N.Y.S. 266 (3d Dep’t 1908), Smith P.J. foreshadowed New York Surrogate’s Courts’ overarching attitudes towards flexible strict compliance: “Courts are not looking for pretexts to destroy wills […] The statute of wills is a wise statute, and all instruments drawn as wills will be tested by its provisions, and condemned where they are obnoxious either to its letter or its spirit.” While proponents of the substantial compliance doctrine argue that courts should principally serve the testamentary intentions of the deceased, New York courts have applied a strict compliance approach to decrease litigation, increase access to justice, prevent fraud, and ensure testamentary capacity.
The Carrot and Stick of Due Execution
The statutory requirements for executing a Last Will in New York are found in section 3-2.1 of its Estates, Powers and Trusts Law (EPTL) entitled “Execution and attestation of wills; formal requirements.” The section is divided into two sections: subparagraph (a) provides the Surrogate’s Court’s formal requirements for executing wills, including instructions on affixing signatures, witnesses, and other procedural elements. Subparagraph (b) states:
The procedure for the execution and attestation of wills need not be followed in the precise order set forth in paragraph (a) so long as all the requisite formalities are observed during a period of time in which, satisfactorily to the surrogate, the ceremony or ceremonies of execution and attestation continue.
This provision provides some leniency to testators when observing the EPTL’s many and arduous formalities. For instance, subparagraph (a)(4) states that the two witnesses to the will’s execution sign in attestation of the signature of the testator. Therefore, the statute implies that the witnesses should sign after the testator. Prior to the EPTL’s enactment, the Surrogate’s Court of Oneida County validated a will even though its witnesses signed it before the testator. In Matter of Jones, 157 Misc. 847, 285 N.Y.S. 894, the Court rejected the common law rule developed in Jackson v. Jackson, 39 N.Y. 153, a previous case, prescribing the order of signatures. The Court wrote:
There is no specific direction in the statute that the testator shall first sign his name to be followed by the signature of the witnesses. This is doubtless the orderly and approved method of execution. In the Jackson Case the court propounds and disapproves a hypothetical case of a testator procuring the signatures of witnesses and then retaining the document for an indefinite period of time before signing himself.
The Court’s approach here reflects a nuance often lost in the strict-versus-substantial compliance debate. No doubt courts prefer witnesses to sign after the testator to avoid the exact scenario the Court hypothesizes in Jackson: the potential testator who obtains signatures on a blank page before writing out an entirely different will alone. Such an action would circumvent the statutory requirement of witness attestation. Unwitnessed wills raise the potential of execution under duress or a testator’s lack of testamentary capacity.
However, in Jones the witnesses and testator signed the will within several minutes and in each other’s company. Therefore, the Court recognized that it would be a “denial of justice to refuse to probate.” Other New York courts subsequently affirmed this decision, and subparagraph (b) of the EPTL codifies it. The provision makes clear that due execution is crucial to admitting a will to probate, but that courts always consider context. In Matter of Falk, 47 A.D.3d 21, 845 N.Y.S.2d 287 (1st Dep’t 2007), the Court showed its willingness to deny probate even to statutorily compliant wills when circumstantial evidence and witness testimony cast doubt on its legitimacy. Falk dispels the myth that strict compliance courts blindly apply statutory requirements to probate without assessing real life consequences.
Consider whether substantial and strict compliance are merely “carrot and stick” approaches to the same problem: how to avoid protracted litigation and the possibility that “a decedent’s testamentary intent will be frustrated.” Substantial compliance at its most extreme is the carrot: allow any document showing clear and convincing evidence of the testator’s intent, regardless of statutory compliance. Strict compliance is the stick: encourage testators to comply with all statutory formalities to avoid any confusion over their intent. Neither approach is perfect.
Harmless Error: Matter of Snide
In Matter of Snide, 1981 52 NY2d 193, spouses Harvey and Rose Snide intended to execute mutual identical wills in an attorney’s office naming the other as their sole heir. They each possessed testamentary capacity and executed their wills in perfect compliance with EPTL 3-2.1. However, each was presented with the other’s will and accidentally signed the wrong one. On his death, Rose petitioned the court to probate Harvey’s will. Her two adult children consented to the document’s admission to probate. However, the guardian ad litem for her minor child objected to the will’s probate, since New York intestacy laws would allow the child a share of the estate.
The guardian argued that Harvey lacked the required testamentary intent because he never intended to sign the will he accidentally signed. The Court declined “the formalistic view that this intent attaches irrevocably to the document prepared, rather than the testamentary scheme it reflects.” The Court reflected on the legislature’s reasons for strict compliance—avoiding fraud and mistake. In the case at bar, the Court determined that both Harvey and Rose’s wills formed “reciprocal elements of a unified testamentary plan.” As a result, there was no danger of fraud. Given that the only formal mistake in the entire will was an obvious one, the Court found no reason to deny it to probate, rejecting “formalism without any corresponding benefit.” Snide provides an example of New York courts’ flexible strict compliance approach.
Ancient Wills: Matter of Neller
The ancient document rule stems from the common law. Courts in different counties vary in their definitions of an “ancient” will. Some say a will is ancient after 30 years; others follow the 20-year federal rule. In either case, courts apply relaxed standards of proof of due execution to ancient wills when admitting them to probate. The logic is clear: New York courts typically require witness testimony or an affidavit of one attesting witness when probating wills. Affidavits are not always available, and the older the will, the more difficult it is to track down attesting witnesses, many of whom may also be deceased. This is why courts will resort to circumstantial evidence when probating ancient wills so long as the document in question is “unsuspicious in appearance” and “was kept in a natural place of custody.”
In Matter of Neller, 2013 NY Slip Op 51325(U), Richmond County Surrogate Court considered the common law criteria for admitting ancient wills to probate. Mary Neller, testatrix, died in 2009 leaving a handwritten will dated 1989. Neller did not execute the will in the presence of an attorney, inhibiting a presumption of due execution. One of her daughters petitioned the Court to admit it to probate. Two of her other children objected to the probate, alleging improper execution. The will included “indecisive and vague phrases regarding the disposition of assets” and was “filled with grammatical and syntax errors to the extent that sentences are often broken into fragments with improper use of punctuation.” Instead of affixing her name to the will, Neller signed “Love and Kisses, Mom.” Moreover, its two witnesses, who had since died, signed the will on a separate paper without providing printed names, addresses, or dates. This cast doubt on whether, pursuant to EPTL 3-2.1(a)(2), Neller signed her will in the presence of witnesses or if they affixed their signatures to her will within the thirty day period required by 3-2.1(a)(4).
While Neller’s will was over 20 years old, its handwritten nature, grammatical errors, and unclear statutes led the Court to conclude it was “suspicious” in appearance. Since neither the will nor any subsequent motion papers made any mention of its location, the Court could not determine whether it was found in a “natural place of custody.” The Court considered its discretion concerning ancient documents, but ultimately denied the will to probate. In his decision, Justice Gigante wrote, “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.” While the ancient document rule can sometimes help in probate, courts will not apply it limitlessly.
Substance over Form: The Future of Strict Compliance
The recent decision in Matter of Johnson 2020 NY Slip Op 20193 provides another example of the court’s flexibility in applying EPTL 3-2.1(a)’s due execution requirements. The decedent, Brendan Johnson, executed a five-page will drafted by an attorney. Johnson and two witnesses signed at the bottom of every page, as well as at the end of the document. 3-2.1(a)(1) requires testators to sign only at the end of their will in order to prevent fraudulent additions to it. Witness testimony suggested that Johnson merely signed the bottom of every page in order to authenticate them, and did so under the presumption of due execution. The Court determined: “While this statutory purpose is undeniably worthy, it has also been long recognized that form should not be raised above substance in order to destroy a will.” Accordingly, the Court determined that, by signing each page, Johnson meant to best serve the purpose of the statute. The Court admitted the will to probate.
Takeaways
New York courts may apply a relaxed standard, but the state remains a strict compliance jurisdiction. To avoid will contests, clients should execute their wills in attorneys’ offices and in the presence of attesting witnesses to ensure a presumption of due execution. While some case law reflects New York courts’ willingness to embrace doctrines like harmless error and the ancient document rule, these decisions have not opened the door to a looser substantial compliance standard. Unless the legislature enacts an explicit substantial compliance provision, testators cannot rely on common law and equity doctrines to save deficient testamentary instruments. A testator’s best bet of having their document successfully probated is to follow the form set out in the EPTL.
