LEXSTAT N.Y. EST. POWERS & TRUSTS LAW § 3-2.1
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ESTATES, POWERS AND TRUSTS LAW
ARTICLE 3. SUBSTANTIVE LAW OF WILLS
PART 2. EXECUTION OF WILLS
GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION
NY CLS EPTL § 3-2.1 (2004)
§ 3-2.1. Execution and attestation of wills; formal requirements
(a) Except for nuncupative and holographic wills authorized by § 3-2.2, every will must be in writing, and executed
and attested in the following manner:
(1) It shall be signed at the end thereof by the testator or, in the name of the testator, by another person in his
presence and by his direction, subject to the following:
(A) The presence of any matter following the testator's signature, appearing on the will at the time of its
execution, shall not invalidate such matter preceding the signature as appeared on the will at the time of its execution,
except that such matter preceding the signature shall not be given effect, in the discretion of the surrogate, if it is so
incomplete as not to be readily comprehensible without the aid of matter which follows the signature, or if to give effect
to such matter preceding the signature would subvert the testator's general plan for the disposition and administration of
his estate.
(B) No effect shall be given to any matter, other than the attestation clause, which follows the signature of the
testator, or to any matter preceding such signature which was added subsequently to the execution of the will.
(C) Any person who signs the testator's name to the will, as provided in subparagraph (1), shall sign his own name
and affix his residence address to the will but shall not be counted as one of the necessary attesting witnesses to the will.
A will lacking the signature of the person signing the testator's name shall not be given effect; provided, however, the
failure of the person signing the testator's name to affix his address shall not affect the validity of the will.
(2) The signature of the testator shall be affixed to the will in the presence of each of the attesting witnesses, or
shall be acknowledged by the testator to each of them to have been affixed by him or by his direction. The testator may
either sign in the presence of, or acknowledge his signature to each attesting witness separately.
(3) The testator shall, at some time during the ceremony or ceremonies of execution and attestation, declare to each
of the attesting witnesses that the instrument to which his signature has been affixed is his will.
(4) There shall be at least two attesting witnesses, who shall, within one thirty day period, both attest the testator's
signature, as affixed or acknowledged in their presence, and at the request of the testator, sign their names and affix
their residence addresses at the end of the will. There shall be a rebuttable presumption that the thirty day requirement
of the preceding sentence has been fulfilled. The failure of a witness to affix his address shall not affect the validity of
the will.
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NY CLS EPTL § 3-2.1
(b) 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.
Legislative History:
Add, L 1966, ch 952, eff Sept 1, 1967, deriving from Dec Est Law § § 21, 22.
Sub (a), par 1, subpar (A), amd, L 1967, ch 686, § 12, eff Sept 1, 1967.
Sub (a), par 1, subpar (C), amd, L 1973, ch 618, eff Sept 1, 1973, applicable to all wills executed on or after such
date.
Sub (a), subpar (4), amd, L 1974, ch 181, eff Sept 1, 1974.
Sub (c), add, L 1967, ch 686, § 13, repealed, L 1974, ch 181, eff Sept 1, 1974.
Laws 1974, ch 181, § 3, provides as follows:.
§ 3. This act shall take effect on the first day of September next succeeding the date on which it shall have become
a law, provided, however, that any will which would have been valid under the law applicable before the effective date
of this act shall not be invalidated by reason of this act.
NOTES:
Explanatory Notes:
Revisers' Notes
[1974] These amendments were recommended by the Law Revision Commission. See Leg. Doc (1974) No. 65(D);
Leg. Doc. (1973) No. 65(D); Leg. Doc. (1972) No. 65(J). Their purpose is to clarify the requirement that in the
execution of a will the formalities be completed within a thirty-day period and to create a rebuttable presumption that
such requirement has been met.
Revisers' Notes
Source: DEL § § 21; 22.
Changes: Combined and revised.
Comments: This section combines and revises DEL § § 21 and 22 as follows:.
1. Another person is authorized to sign the testator's name at the end of the will but such act is required to be
performed in the presence of the testator. However, such person may not be counted as a necessary attesting witness to
the will. Eliminated is the provision in DEL § 22 that the failure of a witness to affix his name or address to the will
subjects him to a penalty.
2. Although the "end of the will" requirement is retained (see, Matter of Andrews, 162 NY 1; Matter of Whitney, 153
NY 259; Matter of O'Neil, 91 NY 516), subject to the specified exceptions, testator's failure to sign at the end will not
defeat the provisions preceding his signature which appeared on the will at the time of execution (cf. Matter of Winters,
302 NY 666); but any provisions following his signature or added prior to his signature subsequent to the time the will
was executed continue to be ineffective (see, Matter of Seveira, 205 App Div 686). This approach is followed in
England (15 & 16 Vict, c 24, § 1) and in Pennsylvania [Pa Stat Ann tit 20, § 180.2(1)].
3. Subparagraph (a)(2) makes explicit that the testator may execute the will or acknowledge his signature to each
witness separately (see, Hoysradt v Kingham, 22 NY 372).
4. Paragraph (b) is new, and is designed to make it clear that the formalities of execution need not follow the precise
order set forth in the section, so long as all formalities are observed during the "ceremony of execution" (cf. Jackson v
Jackson, 39 NY 153; but see, Matter of Jones, 157 Misc 847).
5. Paragraph (c), designed to promote the expeditious execution of wills, stablizes an area which had not been
clarified under case law (cf. Matter of Harty, 85 Misc 628, with Matter of Willenborg, 16 Misc 2d 419).
Treatises & Practice Guides:
Matthew Bender's New York Civil Practice:
1 Cox, Arenson, Medina, New York Civil Practice: SCPA PP 102.01, 103.03, 103.22, 103.56, 210.10; 2 Cox,
Arenson, Medina, New York Civil Practice: SCPA PP 1001.13, 1002.12; 3 Cox, Arenson, Medina, New York Civil
Practice: SCPA PP 1401.04, 1402.06, 1403.06, 1404.06, 1404.09, 1404.11, 1405.02, 1405.03, 1405.04, 1406.05,
1407.01, 1407.07, 1408.03; 4 Cox, Arenson, Medina, New York Civil Practice: SCPA PP 1709.05, 1710.02; 6 Cox,
Arenson, Medina, New York Civil Practice: SCPA PP 2302.04, 2507.03
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NY CLS EPTL § 3-2.1
2 Rohan, New York Civil Practice: EPTL PP 3-2.1[1] et seq
Matthew Bender's New York Practice Guides
New York Practice Guide: Probate and Estate Administration §
New York Practice Guide: Probate and Estate Administration §
New York Practice Guide: Probate and Estate Administration §
New York Practice Guide: Probate and Estate Administration §
New York Practice Guide: Probate and Estate Administration §
New York Practice Guide: Probate and Estate Administration §
New York Practice Guide: Probate and Estate Administration §
New York Practice Guide: Probate and Estate Administration §
New York Practice Guide: Probate and Estate Administration §
New York Practice Guide: Probate and Estate Administration §
3.02
3.03
3.04
3.05
6.10
8.06
8.08
11.08
11.15
11.17
Execution of Will
Attestation of Will
Conflict of Laws as to Will
Presumptions in Law as to the Will
Service of Process Forms
Nuncupative and Holographic Wills
Proof of Lost or Destroyed Will
Objections to Probate
Discovery
Decrees
Warren's Heaton on Surrogate's Court Practice:
Warren's Heaton on Surrogates' Court § 41.09 Proving the Will
Warren's Heaton on Surrogates' Court § 42.05 Due Execution
Warren's Heaton on Surrogates' Court § 42.08 Revocation
Warren's Weed New York Real Property (4th Ed):
11 Warren's Weed, PROOF § 2.25
Practice Forms:
Bender's Forms for the Civil Practice Form No. EPTL 3-2.1:1 et seq
11 Medina's Bostwick Practice Manual (Matthew Bender), Forms WILLS 101 et seq (wills)
See "FORMS" heading following "CASE NOTES", infra.
Related Statutes & Rules:
New York Code References:
This section referred to in § § 1-2.18, 3-2.2, 3-3.7, 3-4.6
Probate where one or more subscribing witnesses cannot be produced, CLS SCPA § § 1404, 1405
Proof of lost or destroyed will, CLS SCPA § 1407
Probate of will not allowed unless court is satisfied of validity, CLS SCPA § 1408
Proceeding for construction and determination of validity of will, CLS SCPA § 1420
Law Reviews & Journals:
Law Reviews:
Arenson, An Analysis of Certain Provisions of the Estates, Powers and Trust Law, 33 Brooklyn L Rev 425
1974 Survey of New York law: decedents' estates. 26 Syracuse LR 311
1975 Survey of New York law: decedents' estates. 27 Syracuse L Rev, No. 1, p. 329, 1976
1983 Survey of New York Law. 35 Syracuse Law Review p. 342
Jurisprudence:
57 NY Jur 2d, Evidence and Witnesses § 106
79 Am Jur 2d, Wills § § 6 et seq, 183 et seq, 199 et seq, 210 et seq, 232 et seq, 254 et seq, 283 et seq, 289 et seq,
313 et seq, 498 et seq, 510 et seq
20 Am Jur Legal Forms 2d, Wills, Forms 266:51 et seq
Annotations:
Authorization by trust instrument of investment of trust funds in nonlegal investments. 78 ALR2d 7
Incorporation in will of extrinsic document not in existence at date of will. 3 ALR2d 682
Codicil as reviving revoked will or codicil. 33 ALR2d 922
Interlineations and changes appearing on face of will. 34 ALR2d 619
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NY CLS EPTL § 3-2.1
Validity of will written on disconnected sheets. 38 ALR2d 477
"Attestation" or "Witnessing" of will, required by statute, as including witnesses' subscription. 45 ALR2d 1365
Failure of attesting witness to write or state place of residence as affecting will. 55 ALR2d 1053
Sufficiency of publication of will. 60 ALR2d 124
Effect of failure of attesting witness to observe testator's capacity. 69 ALR2d 662
Fingerprints as signature. 72 ALR2d 1267
Competency of named executor as subscribing witness to will. 74 ALR2d 283
What constitutes the presence of the testator in the witnessing of his will. 75 ALR2d 318
Sufficiency, as to form, of signature to holographic will. 75 ALR2d 895
Fact that instrument is designated or otherwise identified as a copy as affecting its status as will. 81 ALR2d 1112
Statute of limitations applicable in action to enforce, or recover damages for breach of, contract to make a will. 94
ALR2d 810
Validity of a will signed by testator with the assistance of another. 98 ALR2d 824
Validity of will signed by testator's mark, stamp, or symbol, or partial or abbreviated signature. 98 ALR2d 841
Wills: place of signature of attesting witness. 17 ALR3d 705
Competency, as witness attesting will, of attorney named therein as executor's attorney. 30 ALR3d 1361
Wills: when is will signed at "end" or "foot" as required by statute. 44 ALR3d 701
Effect upon testamentary nature of document of expression therein of intention to make more formal will, further
disposition of property, or the like. 46 ALR3d 938
Construction of reference in will to statute where pertinent provisions of statute are subsequently changed by
amendment or repeal. 63 ALR3d 603
Necessity that attesting witness realize instrument was intended as will. 71 ALR3d 877
Proper disposition under will providing for allocation of express percentages or proportions amounting to more or
less than whole of residuary estate. 35 ALR4th 788
What constitutes rejection of claim against estate to commence running of statute of limitations applicable to rejected
claims. 36 ALR4th 684
Effect of impossibility of performance of condition precedent to testamentary gift. 40 ALR4th 193
Electronic tape recording as will. 42 ALR4th 176
Sufficiency of evidence to support grant of summary judgment in will probate or contest proceedings. 53 ALR4th
561
Texts:
4 Frumer & Biskind, Bender's New York Evidence--CPLR § § 11.16, 15.09; 5 Frumer & Biskind, Bender's New
York Evidence--CPLR § § 23A.01, 23A.03, 23A.05, 23A.06; 6 Frumer & Biskind, Bender's New York Evidence--CPLR
§ 24.07
Case Notes
I. In General 1. Generally 2. Construction with other laws 3. What law governs 4. Strict compliance 5. Substantial
compliance 6. Non-compliance of compliance 7. Procedural matters 8. Evidence and burden of proof 9. Execution as
question of law or fact 10. Determination as to statutory compliance; substance of will 11. --Intent 12. --Capacity or
undue influence 13. Partial admission to probate
II. Testamentary Instruments and Dispositions 14. In general; time transfer effective 15. Delivery 16. Instrument
reserving title or incident thereof 17. Contract to make will 18. Letters and memos 19. Inter vivos trusts 20. Insurance
21. Forgiveness of debt 22. Mortgage provisions 23. Partnership or membership agreements 24. United States Savings
Bonds 25. Copies of instruments 26. Support agreements 27. Other instruments and dispositions
III. Signature of Testator 28. In general 29. Mistake 30. Initials 31. Mark 32. --Evidence and burden of proof 33.
Fingerprints 34. Device, emblem, or seal 35. Assistance in signing 36. Signature by agent
IV. Subscription at End 37. In general 38. Effect of subscription at beginning of instrument 39. Partial invalidity of
instrument 40. Codicils added after date of subscription 41. Misplacement as invalidating entire will; prior law 42.
--Where nondispositive writings appear below subscription 43. --Where executors appointed below subscription 44.
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NY CLS EPTL § 3-2.1
Relation to attestation clause 45. Relation to witnesses' signatures 46. Subscription on back of will 47. Subscription in
margin or the like 48. Folded wills 49. Form wills 50. --Folded form wills 51. --Attached sheets
V. Signature in Presence of Witnesses 52. In general; sequence of events 53. Necessity that witnesses see testator's
signature 54. Necessity of contemporaneous signing 55. Effect of recitals in attestation clause 56. Evidence and burden
of proof
VI. Publication, Acknowledgment and Request to Witness 57. In general 58. Sequence of events 59. When
acknowledgment required 60. --When express acknowledgment not required 61. --Sufficiency of request 62.
Sufficiency of acknowledgment 63. --Request that witness act as such 64. --Acknowledgment to only one witness 65.
Effect of acknowledgment without subscription 66. Necessity that testator's signature be visible 67. Publication without
subscription or acknowledgment 68. Subscription or acknowledgment without publication 69. Sufficiency of
publication 70. --Time of publication 71. --Reading of will 72. Where testator acts through interpreter 73. Execution of
copies
VII. Subscription by Witnesses 74. In general 75. What constitutes end of will 76. --Form wills 77. Interested witnesses
78. Relation to attestation clause 79. Time of signing 80. Signature in each other's presence 81. Signing by or as notary
82. Signing by agent 83. Initials 84. Requirement of prior law as to address of witnesses
VIII. Incorporation by Reference 85. In general 86. Effect on validity of principal will 87. Particular instances where
incorporation not allowed 88. Instrument as extrinsic evidence 89. When incorporation allowed 90. --Particular
instances
IX. Integration 91. In general; sufficient integration 92. --Insufficient integration
X. Testimony of Witnesses 93. In general; liberal construction 94. Conflicting testimony; different witnesses 95.
Contradictory statement; same witness 96. Forgetful witness 97. Hostile witness 98. Interested witness 99. Deceased or
absent witness; probate allowed 100. --Probate denied 101. Disregarding testimony 102. Use of other evidence where
testimony unreliable 103. --Effect of attestation clause 104. --Attorney's testimony 105. --Ancient documents
XI. Attestation Clauses 106. In general; weight as evidence 107. Necessity of corroboration
XII. Other Evidence of Due Execution 108. In general; execution supervised by attorney 109. Oral declarations of
testator 110. Other factors considered
XIII. Lost or Destroyed Wills 111. In general; burden of proof 112. Draft or copy 113. Codicil 114. Oral testimony
XIV. Multiple Execution 115. In general
XV. Holographic or Nuncupative Wills 116. In general 117. Subscription at end 118. Signing in presence of witnesses
119. Publication, acknowledgment, and request to witnesses 120. Subscription by witnesses 121. Incorporation by
reference 122. Integration 123. Testimony of witnesses 124. Status of testator or circumstances of death
XVI. Compliance With Law of Testator's Domicile 125. In general; foreign state 126. Foreign country
XVII. Revocation by Writing or Partial Obliteration 127. In general 128. Later will 129. Codicil 130. Erasing or
crossing out 131. Interlineation 132. Cutting or tearing 133. Oral modification or revocation 134. Sustaining original or
unmodified portions of will
I. In General
1. Generally
Testamentary gifts have long been required to be in writing, except for nuncupative wills. Re Rubin's Will (1952)
280 AD 348, 113 NYS2d 70, adhered to 280 AD 864, 113 NYS2d 77 and affd 305 NY 288, 113 NE2d 424.
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This section requires compliance in the following respects: (1) The will must be subscribed by testator at the end;
(2) such subscription must be affixed or acknowledged in the presence of the attesting witnesses; (3) at the time the
testator must declare the instrument as his will; (4) there must be more than a single witness; (5) each witness must sign
his name; (6) each witness' signature must be affixed at the end of the will; (7) this must be done at the request of the
testator. Re Andrews' Will (1949) 195 Misc 421, 88 NYS2d 32.
This section was designed to prevent fraud in the execution of wills, and its beneficial purpose should not be
thwarted by an unduly strict interpretation of its provisions, especially where there is no opportunity for fraud to have
been perpetrated. Re Will of Kobrinsky (1966) 51 Misc 2d 222, 273 NYS2d 156.
2. Construction with other laws
By the words "the will" as used in Surrogate's Court Act, § 278, it is intended to specify the last will and testament
speaking as of the time of the testator's death and found to have executed in accordance with the provisions of this
section at a time when the deceased possessed testamentary capacity and was free from fraud and undue influence. Re
Newcomb's Will (1952) 202 Misc 1020, 111 NYS2d 314.
Executor named in decedent's 1992 will, who was attorney and member of same firm as attorney who had drafted
will, was granted waiver of requirement under CLS SCPA § 2307-a that he produce decedent's written
acknowledgement of disclosure in order to be entitled to full statutory commission, where decedent had indicated that
she would make appointment to execute disclosure form and review her testamentary plan, but she became ill shortly
thereafter and did not make appointment before her death on January 16, 1997. In re Estate of Waldman (1997, Sur) 172
Misc 2d 130, 658 NYS2d 565.
3. What law governs
The public policy of this state prohibits the enforcement of an oral contract to make a will, and though a foreign
statute may be substantive, the law of New York governs. Hence, a complaint to enforce an oral agreement executed in
Florida to make a will in favor of the plaintiff was properly dismissed, although such an oral agreement was valid and
enforceable under Florida law. Rubin v Irving Trust Co. (1953) 305 NY 288, 113 NE2d 424.
Tentative trusts created in favor of the decedent's son are not affected by the provisions of this law, where said
provisions became effective subsequent to the creation of said trusts. Re Yarme's Estate (1933) 148 Misc 457, 266 NYS
93, affd 242 AD 693, 273 NYS 403.
Although the law in effect when a will is executed controls the form of such execution, the law in effect at the time
of the testator's death determines the meaning and effect of the will. Re Redmond's Will (1946, Sur) 60 NYS2d 316.
4. Strict compliance
The formalities of execution prescribed by this section must be strictly followed for the purpose of rendering it
certain that an instrument is the testator's will. Re Kenney's Will (1917) 179 AD 258, 166 NYS 478.
It has long been established that when the issue raised is solely as to the manner of the execution of a will and the
only inquiry is as to a compliance with the statutory requirements which fix an "inflexible" and determinative rule, that
in such case the intention of the testator is irrelevant and that of the legislature in the enactment of the rule prevails. Re
Peabody's Will (1952) 279 AD 826, 109 NYS2d 257 (1952).
The statute of wills must be strictly construed. Re Ditson's Estate (1941) 177 Misc 648, 31 NYS2d 468; Re
Winters' Will (1950) 277 AD 24, 98 NYS2d 312, affd 302 NY 666, 98 NE2d 477, remittitur den 302 NY 845, 100 NE2d
43.
5. Substantial compliance
A slight variance from the usual formality in the execution of a will, unattended by any other circumstances
throwing suspicion on the will, does not render such will invalid. Re Thompson's Will (1947) 189 Misc 873, 68 NYS2d
123, affd 274 AD 850, 81 NYS2d 923.
While the provisions of the statute are strictly enforced, their observance has never been reduced to any ironclad
ceremonial or ritualistic formula, and if the fair preponderance of evidence is sufficient to show substantial compliance
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NY CLS EPTL § 3-2.1
with the statute in the execution of the testamentary instrument, the instrument becomes eligible for admission to
probate, unaffected by mere surplusage. Re Douglas' Will (1948) 193 Misc 623, 83 NYS2d 641.
Although the observance of the formalities required by this section need not be in accordance with strict ritualistic
procedure, there must be a substantial compliance as to each and every one of the statutory requirements. Re Andrews'
Will (1949) 195 Misc 421, 88 NYS2d 32.
While this section was designed to prevent fraud, its beneficial purpose should not be subverted by overly strict
interpretation. Re Will of Dupin (1962) 36 Misc 2d 309, 232 NYS2d 381.
This section was designed to prevent fraud in the execution of a will and its beneficial purpose should not be
thwarted by an unduly strict interpretation of its provisions, especially where there is no opportunity for fraud to have
been perpetrated. Re Will of Kobrinsky (1966) 51 Misc 2d 222, 273 NYS2d 156.
Informality of paper does not prevent it from being given testamentary effect. Re Estate of Kenneally (1988) 139
Misc 2d 198, 528 NYS2d 314.
6. Non-compliance of compliance
The public policy of this state prohibits the enforcement of an oral contract to make a will. And though the statute
may be substantive, the law of New York governs. Hence, a complaint to enforce an oral agreement executed in Florida
to make a will in favor of the plaintiff was properly dismissed although such an oral agreement was valid and
enforceable under Florida law. Rubin v Irving Trust Co. (1953) 305 NY 288, 113 NE2d 424.
An instrument which was neither executed nor attested in the manner required by this section is not entitled to
probate as a will. Re Cressey's Will (1961, 4th Dept) 12 AD2d 881, 210 NYS2d 210, affd 10 NY2d 918, 223 NYS2d
871, 179 NE2d 711.
Public policy dictates that the requirements of the statute of wills be carried out, and non-compliance therewith is
fatal to the validity of any act attempted. Re Foley's Will (1912) 76 Misc 168, 136 NYS 933.
A document, testamentary in character, but not executed with the formalities required by this section, cannot be
admitted to probate or serve to vary or revoke the terms of decedent's will. Re Estate of Voice (1963) 38 Misc 2d 779,
238 NYS2d 736, affd 19 AD2d 945, 245 NYS2d 310.
Trial court erred in denying summary judgment pursuant to N.Y. C.P.L.R. 3212 to the executor of an estate as to
two objections to a will, as the will was properly executed pursuant to N.Y. Est. Powers & Trusts Law § 3-2.1, and a
step-daughter of the decedent failed to show that the decedent lacked testamentary capacity; however, the trial court
properly denied summary judgment as to an objection claiming undue influence and fraud. In re Estate of Johnson
(2004, App Div, 3d Dept) 775 NYS2d 107.
Trial court erred in denying summary judgment pursuant to N.Y. C.P.L.R. 3212 to the executor of an estate as to
two objections to a will, as the will was properly executed pursuant to N.Y. Est. Powers & Trusts Law § 3-2.1, and a
step-daughter of the decedent failed to show that the decedent lacked testamentary capacity; however, the trial court
properly denied summary judgment as to an objection claiming undue influence and fraud. In re Estate of Johnson
(2004, App Div, 3d Dept) 775 NYS2d 107.
7. Procedural matters
A proceeding to vacate a probate decree on the ground that the will was not executed in conformity with this
section is not barred by the passage of twenty years where it was only recently discovered that the testator had made
references in his will to corporations established subsequent to the purported date of execution and attestion of the will.
Re Schell's Will (1947) 272 AD 210, 70 NYS2d 441, app den 272 AD 1081, 75 NYS2d 303 and app dismd 297 NY 599,
75 NE2d 270.
Suit brought to determine validity of codicils to will was a "special proceeding" subject to provision in dead man's
statute that upon trial of special proceeding the testimony of interested witnesses is barred. Re Will of Sheehan (1976,
4th Dept) 51 AD2d 645, 378 NYS2d 141.
Notwithstanding that the granting of summary relief in contested probate proceedings is relatively rare, summary
judgment would be granted where the proponents of the will made out a prima facie case for probate and where the
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objectant failed to raise any issue of fact with respect to the alleged issues of will execution, capacity, and undue
influence or fraud. Re Estate of Witkowski (1981, 3d Dept) 85 App Div 2d 807, 445 NYS2d 639.
Proponents, draftsman and executor of decedent's will, and residuary legatee, should have been granted summary
judgment dismissing objections and admitting to probate decedent's last will and testament where it was uncontroverted
that draftsman announced to subscribing witnesses, in decedent's presence, that decedent was executing will, draftsman
requested subscribing witnesses to sign will in decedent's presence and with his silent permission and approval,
proponents showed that decedent possessed testamentary capacity at time he executed will, and will was not product of
fraud or undue influence. In re Estate of Frank (1998, 4th Dept) 249 App Div 2d 893, 672 NYS2d 556, app den (1998)
92 NY2d 807, 678 NYS2d 592, 700 NE2d 1228.
A petition to revoke letters testamentary was sufficient where it alleged fraud; petitioner was not required to show a
reasonable probability of success. Re Hinderson's Will (1956) 4 Misc 2d 559, 150 NYS2d 869, affd (2d Dept) 2 AD2d
682, 153 NYS2d 584.
In will contest, objectant who made generalized claim of lack of testamentary capacity and due execution would be
required to furnish bill of particulars as to which requirements of CLS EPTL § 3-2.1 (respecting execution and
attestation) were allegedly not complied with, and as to details of mental illness allegedly suffered by decedent;
although proponent has burden of proof concerning due execution and testamentary capacity, it was objectant who
placed those requirements at issue. Re Estate of Sheehan (1987) 137 Misc 2d 310, 520 NYS2d 342.
8. Evidence and burden of proof
Proponent of will for probate was on notice that burden of proving due execution was hers, despite Surrogate
Court's failure to include that requirement when it framed issues for trial, because burden of proving due execution is on
proponent of will under CLS EPTL § 3-2.1, which provides, among other requirements, that testator must publish to
attesting witnesses that document was his or her will. In re Estate of Pirozzi (1997, 3d Dept) 238 AD2d 833, 657 NYS2d
112.
Before a propounded document can be admitted to probate as a last will and testament, there must be shown to the
satisfaction of the surrogate not only that the same has been executed with the formalities but also that the person
alleged to have executed the same was free from the disqualifications set forth in § 10, as to real estate, and was
possessed of the qualifications prescribed by § 15 as to personal estate. Re King's Will (1915) 89 Misc 638, 154 NYS
238.
A will and two codicils must be admitted to probate although the second codicil revoked all former codicils, where
it is satisfactorily demonstrated that all the instruments were executed in conformity with this section by a competent
and uninfluenced testatrix. Re Glickman's Will (1939) 170 Misc 865, 11 NYS2d 379.
While the provisions of the statute are strictly enforced their observance has never been reduced to any ironclad
ceremonial or ritualistic formula, and if the fair preponderance of evidence is sufficient to show substantial compliance
with the statute in the execution of the testamentary instrument, the instrument becomes eligible for admission to
probate, unaffected by mere surplusage. Re Douglas' Will (1948) 193 Misc 623, 83 NYS2d 641.
There is no question but that, in a will contest, the burden of proof of due execution and testamentary capacity is
upon the proponent, and he is accordingly not entitled to demand a bill of particulars from the objector regarding those
matters notwithstanding the 1958 change in Rule 121-a of the Rules of Civil Practice. Re Lenfestey's Will (1961) 28
Misc 2d 302, 211 NYS2d 3.
At least in such case where the proponent stands to gain because of an alteration in the will, it is incumbent upon
him to demonstrate by a fair preponderance of evidence that the writing contained in the instrument was the same at the
date of its execution as at the time of probate as to all dispositive provisions. Re Lyons' Will (1947, Sur) 75 NYS2d 237.
The burden of proving that an instrument was executed in conformity with the provisions of this section rests upon
the proponent. Re Will of Nevins (1962, Sur) 231 NYS2d 586.
9. Execution as question of law or fact
Whether a will was drawn in the form prescribed by this section is a pure question of law. Re Brand (1918) 185
AD 134, 173 NYS 169, affd 227 NY 630, 125 NE 913.
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On proceedings to probate a will in which certain issues were directed to be tried in surrogate's court before a jury,
it was error for the court to refuse to submit to the jury the question of whether the will was executed in compliance
with this section and to hold as a matter of law that the will had been properly executed, where the evidence introduced
as to the execution of the will was conflicting and raised a clear question of fact. Re Lawler's Will (1920) 195 AD 27,
185 NYS 726.
Objectant was not entitled to summary judgment disallowing probate of will where fact issue existed as to whether
attorney-draftsman merely guided physically infirm testatrix's hand when she executed her will or whether he actually
signed will in her stead. Re Grubert (1988, 2d Dept) 139 App Div 2d 741, 527 NYS2d 492.
10. Determination as to statutory compliance; substance of will
Surrogate's Court properly granted petitioner's motion for summary judgment admitting will to probate where he
offered deposition testimony, affidavit, and documentary evidence from attorney who met with decedent, prepared will,
and witnessed its execution, and although respondents submitted number of affidavits in opposition, none of affiants
had personal knowledge of decedent's capacity or of any undue influence or fraud actually exercised on decedent. In re
Estate of Dietrich (2000, 3d Dept) 271 AD2d 894, 706 NYS2d 763.
A will offered for probate, admittedly intended to be what in form and substance it purports on its face to be, is
entitled to probate, notwithstanding that the propounded paper was merely part of a scheme of the testator to deprive the
widow of her statutory share, in the execution of which scheme the testator, shortly before his death, executed the paper
propounded and thereafter executed a trust agreement whereby he undertook to place in the hands of trustees all of his
property except a nominal amount. Re Straus' Estate (1934) 154 Misc 31, 277 NYS 134, affd 245 AD 707, 281 NYS
995.
The nominated executor's objection to the probate of the instrument by the decedent's surviving spouse, who was
not mentioned or provided for in the document, on the ground that no assets will devolve under the instrument, is no bar
to probate if the instrument is executed in accordance with this section by a competent testator acting in pursuance of
his own volition. Re Tankelowitz's Will (1937) 162 Misc 474, 294 NYS 754.
The surrogate has no discretion to refuse to admit to probate a will or codicil executed in compliance with this
section by one possessing testamentary capacity and under no undue influence. Re Strickland's Will (1939) 172 Misc
976, 16 NYS2d 666.
A will, although missing a page, could be admitted to probate where the missing page contained nothing more than
boiler-plate legalisms and the instrument's dispositive provisions were complete without regard to the missing page, the
instrument as executed constituted a full testamentary scheme encompassing distribution of decedent's entire estate
without resort to the language contained on the missing page, and it was incumbent upon the court to effectuate duly
executed instruments which incorporate a decedent's entire dispositive scheme. Re Estate of Hall (1983) 118 Misc 2d
1052, 462 NYS2d 154.
11. --Intent
It has long been established that when the issue raised is solely as to the manner of the execution of a will and the
only inquiry is as to a compliance with the statutory requirements which fix an "inflexible" and determinative rule, that
in such case the intention of the testator is irrelevant and that of the Legislature in the enactment of the rule prevails Re
Peabody's Will (1952) 279 AD 826, 109 NYS2d 257.
Intention is not to be considered when passing upon the formal statutory requirements in the execution of wills, and
there is no exception with respect to instruments wholly written in the testator's hand. Re Robinson's Will (1951) 201
Misc 439, 103 NYS2d 967.
While, in proceedings to construe wills, the primary principle is to discover and carry into effect intention of the
decedent, no such rule can be invoked in construction of this section. Re Will of Moeser (1964) 42 Misc 2d 1017, 249
NYS2d 443.
In determining whether there has been a compliance with this section, it is the legislature's intention and not that of
the testator which is controlling. Re Rothstein's Will (1952, Sur) 112 NYS2d 716.
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While the intention of the testator is paramount in the interpretation of a will after its admission to probate, that rule
cannot be invoked in the construction of the statute regulating the execution thereof. Re Begun's Will (1953, Sur) 123
NYS2d 782.
12. --Capacity or undue influence
Surrogate's Court was justified in allowing hearing to determine whether attorney-legatee exercised undue
influence over testatrix in discussions surrounding preparation of her will, even though attorney-legatee did not actually
draft will, where drafting attorney prepared will primarily on basis of attorney-legatee's memo outlining testatrix's assets
and testamentary wishes, which named attorney-legatee and his family members as potential beneficiaries. Re
Henderson (1992) 80 NY2d 388, 590 NYS2d 836, 605 NE2d 323.
Inference of undue influence which arises when attorney has drafted will in which he is beneficiary should not
automatically be applied where attorney-legatee has had professional relationship with testator but was not attorney who
drafted will. Re Henderson (1992) 80 NY2d 388, 590 NYS2d 836, 605 NE2d 323.
If a testatrix was mentally incompetent at the time of executing a codicil, subsequent restoration to competency, no
matter how long continued, does not give efficacy to the void codicil unless after restoration to competency there was a
republication of the instrument in the manner required by this section. Re Strong's Will (1917) 179 AD 539, 166 NYS
862.
A mere showing of opportunity and even of a motive to exercise undue influence does not justify a submission of
that issue to the jury, unless there is in addition evidence that such influence was actually utilized. Re Will of Haggart
(1969, 4th Dept) 33 AD2d 124, 307 NYS2d 18, affd 27 NY2d 900, 317 NYS2d 370, 265 NE2d 779.
In determining whether nursing home operator had exercised undue influence upon a very old and ill man and
caused him to change his will, the jury could have considered, among other things, whether there was a long standing
relationship of trust and confidence between the deceased and his former attorney, and that by uttering slanders and
denigrating the attorney's honesty and integrity, the nursing home operator had been able to separate them and, thereby,
deprive deceased of his counsel; whether there was a close relationship between the decedent and the nursing home
operator and whether she exploited his fraility for her own personal gain; and whether she was either directly or
indirectly instrumental in having another attorney selected to prepare decedent's final will. Thus it was error to have
removed the question of undue influence from the consideration of the jury. Re Burke (1981, 2d Dept) 82 App Div 2d
260, 441 NYS2d 542.
The burden is on a contestant of a will to establish undue influence by a fair preponderance of the evidence. Thus,
in a proceeding to contest a will on the ground of undue influence over the testatrix by her son, it was improper to deny
the probate of her will, and that ruling would be reversed, where, although her son had exercised control over her
activities in her final days, there was no evidence that she was under his influence; he was living with her and taking
care of her physical needs; he was her only surviving son; her doctor testified that she was mentally very strong; all of
the witnesses to her will testified to her awareness, social presence and obvious mental clarity; and her son was the
natural object of her bounty. Re Estate of Klitgaard (1981, 3d Dept.) 83 AD2d 651, 442 NYS2d 590.
Probate of a will was properly denied on the ground of undue influence of decedent's sister where a prior will left
the estate to a daughter who cared for decedent during the last three years of his life, and where a subsequent will,
naming the sister as residuary beneficiary, was executed in the hospital by decedent while he was close to death, and
while he was in the presence of his sister, who had stated to other persons that it was her intention to influence him. Re
Estate of O'Donnell (1982, 3d Dept) 91 App Div 2d 698, 457 NYS2d 609.
In contested probate proceeding, court erred in removing question of undue influence by proponent from
consideration of jury since jury could have found that confidential relationship existed between testatrix, woman of
advanced years, and proponent, who drafted her will, in which he was named sole beneficiary, especially where
evidence showed that proponent had control over all of testatrix' assets and was managing her financial affairs; although
proponent had offered explanation as to why testatrix had executed will in his sole favor, such testimony merely created
fact question for jury as to whether proffered explanation was adequate. Re Bach (1987, 2d Dept) 133 App Div 2d 455,
519 NYS2d 670.
Jury verdict which found existence of undue influence in execution of will and denied probate was supported by
trial testimony that (1) testator was about 90 years old at time he executed will, that he suffered from number of
physical infirmities consistent with his age, that he was "upset," "in space," and "beaten individual" at time of execution
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of will, and (2) proponent of will was overbearing and treated testator in condescending manner, significantly limited
amount of time testator spent with other family members, and did not permit testator to talk about will. Re Estate of
Callahan (1989, 2d Dept) 155 AD2d 454, 547 NYS2d 113.
In probate proceeding, court properly determined, as matter of law, that will had been properly executed and that
testatrix had not been unduly influenced by her daughter, absent showing that bequest to daughter and exclusion of son
was due to anything other promptings of affection motivated by ties of attachment arising from consanguinity; mere
showing of opportunity (and even motive) to exercise undue influence does not justify submission of issue to jury
unless there is additional evidence that undue influence was actually used. In re Posner (1990, 2d Dept) 160 AD2d
943, 554 NYS2d 666, app den 76 NY2d 710, 563 NYS2d 61, 564 NE2d 671, reconsideration dismd 77 NY2d 940, 569
NYS2d 614, 572 NE2d 55.
Inference of undue influence was not created in situation where attorney who served as testatrix's long-time
counselor received bequest but did not draft will. Re Henderson (1991, 2d Dept) 175 AD2d 804, 572 NYS2d 932, app
gr 79 NY2d 757, 583 NYS2d 192, 592 NE2d 800 and revd on other grounds, app dismd, summary judgment den, in part
80 NY2d 388, 590 NYS2d 836, 605 NE2d 323.
Objectors were not entitled to summary judgment on basis of incompetence of decedent at time of execution of
will, despite affidavit of physician who examined decedent shortly before execution of will, diagnosed decedent as
suffering from senile dementia, and concluded that decedent was not competent to execute will, where affidavit of
physician who had not examined defendant explained that senile dementia is not condition which necessarily renders
person incompetent at all times and is often characterized by periods of lucid behavior during which person would be
competent to execute will, and there was evidence by attesting witnesses as to execution of will. In re Estate of Ruso
(1995, 3d Dept) 212 AD2d 846, 622 NYS2d 137.
New York does not recognize cause of action for tortious interference with prospective inheritance. Vogt v
Witmeyer (1995, 4th Dept) 212 AD2d 1013, 622 NYS2d 393.
Although inference of undue influence, requiring beneficiary to explain circumstances of bequest, arises when
beneficiary under will was in confidential or fiduciary relationship with testator and was involved in drafting of will, no
such inference arises where there is no evidence that fiduciary-legatee had any direct or indirect involvement in
preparation or execution of testamentary instruments offered for probate. Cordovi v Karnbad (In re Estate of Bartel)
(1995, 1st Dept) 214 AD2d 476, 625 NYS2d 519.
Decedent possessed testamentary capacity, even though she suffered periods of disorientation and confusion at time
of her hospitalization, where she was alert and understood what was taking place when will was executed, and she was
aware of natural objects of her bounty and nature and extent of her property. In re Margolis (1995, 2d Dept) 218 AD2d
738, 630 NYS2d 574, app den 88 NY2d 802, 644 NYS2d 689, 667 NE2d 339.
Decedent possessed testamentary capacity where he understood nature and consequences of executing will, he
understood extent of his property and to whom he was devising it, and his rationale for bequests he made was expressed
in will itself. In re Estate of Richtman (1995, 2d Dept) 221 AD2d 640, 634 NYS2d 197, app den 87 NY2d 810, 642
NYS2d 858, 665 NE2d 660.
Mere showing of opportunity, and even of motive to exercise undue influence, is insufficient to invalidate will in
absence of additional evidence that such influence was actually exercised. In re Estate of Richtman (1995, 2d Dept) 221
AD2d 640, 634 NYS2d 197, app den 87 NY2d 810, 642 NYS2d 858, 665 NE2d 660.
Surrogate's Court properly set aside jury's verdict that testatrix lacked testamentary capacity where objectants never
refuted testimony of subscribing witnesses that testatrix was alert, and of sound mind, memory, and understanding at
time of will execution, objectants offered testimony of neurologist who never knew testatrix and who never treated her,
and his opinion was speculative and contradicted by testimony of proponents' witnesses, including expert testimony. In
re Estate of Tracy (1995, 2d Dept) 221 AD2d 643, 634 NYS2d 198, motion to dismiss app den (NY App Div, 2d Dept)
1995 NY App Div LEXIS 12469 and app den 87 NY2d 811, 644 NYS2d 144, 666 NE2d 1058.
Sufficient issues of fact warranted submission of issue of undue influence over 94-year-old testator to jury where
(1) one week after he was admitted to nursing home, his son (will's proponent) drove testator to lawyer's office where
will was executed naming son sole beneficiary, (2) son did not notify his sister (testator's other child) and acted against
advice of testator's physician, and (3) inference was raised that son had convinced testator that sister had
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misappropriated money from testator's accounts and therefore should not benefit from inheritance. In re Estate of Itta
(1996, 2d Dept) 225 AD2d 548, 638 NYS2d 759.
Proponents were not entitled to summary judgment to dismiss objection to will based on lack of testamentary
capacity where there was minimal evidence of testator's competence, and fact issue was raised by psychiatrist's affidavit
based on testator's extensive writings. In re Estate of Warsaski (1996, 1st Dept) 228 AD2d 275, 644 NYS2d 37.
Surrogate's Court properly admitted evidence of certain events which occurred after execution of will as relevant in
determining whether petitioner had executed undue influence on testator and bearing on testator's testamentary capacity
at time of execution of purported will. In re Estate of Steinhardt (1996, 2d Dept) 228 AD2d 685, 644 NYS2d 970.
Testator was victim of undue influence by proponent, one of testator's 4 siblings, where, inter alia, testator spent
last months of his life in proponent's home confined to bed, taking various pain medications, and in "confused" and
"weak and shaky" state, proponent was not close to testator for most of their lives, proponent actively insulated testator
from relatives and threatened to put testator in nursing home if he did not "agree" not to see those relatives, and attorney
who drafted will was proponent's long-time family attorney and had no prior dealings with testator. In re Panek (1997,
4th Dept) 237 AD2d 82, 667 NYS2d 177.
Last will and testament was properly admitted to probate where there was no evidence that testator would have
changed his will if he knew of objectant's whereabouts, will indicated that reason for objectant's disinheritance was lack
of contact between testator and objectant for more than 29 years prior to execution of will, and claim that drafter's
fraudulent intent was inferable from his self-interest in maintaining business account controlled by objectant's deceased
brother was so speculative as to constitute no evidence of fraud at all. In re Estate of Castagnello (1997, 1st Dept) 239
AD2d 281, 658 NYS2d 848.
Preliminary executrix's successful efforts to have herself appointed as decedent's guardian only months before he
executed first of 3 codicils did not collaterally estop her from arguing that decedent had testamentary capacity when he
executed codicils, because finding of incapacity under CLS Men Hyg Art 81 is based on different factors from those
involved in finding of testamentary capacity. In re Estate of Colby (1997, 1st Dept) 240 AD2d 338, 660 NYS2d 3, app
den 91 NY2d 801, 666 NYS2d 563, 669 NE2d 533.
Although decedent was susceptible to undue influence, burden in probate proceeding never shifted to preliminary
administratrix/guardian to show freedom from undue influence where there was no evidence of her involvement in
drafting of testamentary instruments, and objectants' evidence of undue influence was negligible; mere opportunity for
undue influence does not mean that it was exercised. In re Estate of Colby (1997, 1st Dept) 240 AD2d 338, 660 NYS2d
3, app den 91 NY2d 801, 666 NYS2d 563, 669 NE2d 533.
In probate proceeding, Surrogate's Court properly granted summary judgment dismissing objection that decedent's
niece and nephew, who were among residuary legatees under will, had exercised undue influence on decedent where
they seldom visited decedent, had no control over her daily activities or financial affairs, and did not participate in
making of will, decedent contacted executor to make new will before niece and nephew visited her, and opponents of
will doubted validity of their own objection. In re Estate of Buchanan (1997, 3d Dept) 245 App Div 2d 642, 665 NYS2d
980, app dismd without op (1998) 91 NY2d 957, 671 NYS2d 717, 694 NE2d 886.
Mere proof that decedent suffered from old age, physical infirmity, and chronic, progressive senile dementia when
will was executed was not necessarily inconsistent with testamentary capacity and did not alone preclude finding
thereof; proper inquiry was whether she was lucid and rational when will was made. In re Estate of Buchanan (1997, 3d
Dept) 245 App Div 2d 642, 665 NYS2d 980, app dismd without op (1998) 91 NY2d 957, 671 NYS2d 717, 694 NE2d 886.
In probate proceeding, Surrogate's Court properly denied motion to set aside jury verdict finding that decedent had
testamentary capacity when will was executed, even though she suffered from old age, physical infirmity, and chronic,
progressive senile dementia, where executor testified that decedent invited him to her home for purpose of changing her
will, that decedent explained her reasons for doing so and corrected drafting error before executing new will in presence
of executor, his wife, and his secretary, and that decedent was rational and of sound mind, executor's testimony was
corroborated by his wife and secretary, physician who treated decedent for osteoporosis testified that he noted no defect
in her mental state until 4 months after execution of will, decedent's ophthalmologist testified similarly, and although
there was contrary expert testimony by psychiatrist and neurologist, they never examined decedent but based their
opinions almost exclusively on her medical records. In re Estate of Buchanan (1997, 3d Dept) 245 App Div 2d 642, 665
NYS2d 980, app dismd without op (1998) 91 NY2d 957, 671 NYS2d 717, 694 NE2d 886.
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In probate proceeding, Surrogate's Court properly denied motion to set aside jury verdict finding that decedent had
testamentary capacity when will was executed where allegations of juror misconduct were based solely on hearsay, and
juror injected only her personal experiences, rather than outside material, into deliberations. In re Estate of Buchanan
(1997, 3d Dept) 245 App Div 2d 642, 665 NYS2d 980, app dismd without op (1998) 91 NY2d 957, 671 NYS2d 717, 694
NE2d 886.
Court properly denied summary judgment dismissing objection alleging lack of testamentary capacity where, near
time will was executed, decedent's medical records showed diagnosis of delirium, with symptoms of confusion,
disorientation, and significant mental impairment, and will purportedly devised property which had already been
transferred at time will was executed. In re Estate of Spangenberg (1998, 2d Dept) 248 AD2d 543, 670 NYS2d 48.
Court erred in granting proponents' motion for summary judgment dismissing objections to probate of will where
there was sufficient circumstantial evidence of fraud and undue influence to warrant trial on those issues, especially
where testator's daughter had both motive an opportunity to exert undue influence over testator and to commit fraud,
and testator's disinherited son was formerly shut out of testator's life by testator's daughter. In re Estate of Delyanis
(1998, 2d Dept) 252 AD2d 585, 676 NYS2d 219.
Objectants in probate proceeding did not raise triable issue of fact as to decedent's testamentary capacity where (1)
attorney who drafted will testified that decedent was explicit and specific as to what she wanted in her will, (2) 3
attorneys who witnessed will testified that, based on decedent's demeanor, responses to questions, and conversations,
she was mentally competent to execute will, and (3) decedent's stockbroker testified that decedent controlled her
financial affairs and made her own investment decisions until her death. In re Musso (2000, 2d Dept) 273 AD2d 391,
711 NYS2d 331.
Decedent knew nature and extent of her property and natural objects of her bounty, and she did not disregard tax
consequences of her new will, even though she refused to discuss her assets with her attorney, where she stated that she
might consider later revision of will involving trust but that she would advise him of her decision. In re Musso (2000,
2d Dept) 273 AD2d 391, 711 NYS2d 331.
Decedent was competent to make will where (1) her contesting son had not seen her for 5 years before her death,
(2) son offered virtually no factual testimony to support his conclusory assertions that she was "kind of childish acting,
senile acting [and] [s]he couldn't remember things," and that she "[s]eemed like a five year old at times," and (3) her
attorney testified that he was with her for over 2 hours on day that her will was prepared, that she was mentally alert and
responsive to all of his questions, and that "[s]he was as I've known her for over 20 years." In re Estate of Sweetland
(2000, 3d Dept) 273 AD2d 739, 710 NYS2d 668.
Decedent's will was not product of fraud or undue influence, even though proponent son continued to live with and
care for decedent after his 5 siblings moved away from home, where testimony of those contesting siblings distilled to
their unsubstantiated belief that will must have been result of proponent son's undue influence because decedent could
not and would not have done anything without his permission. In re Estate of Sweetland (2000, 3d Dept) 273 AD2d 739,
710 NYS2d 668.
Surrogate's Court improperly found that decedent's will was product of undue influence or fraud where, inter alia,
petitioner merely showed that decedent was "infirm" and "sickly" at time that he executed his will, there was no support
for petitioner's accusations as to respondent's purported efforts to ingratiate himself to decedent, and, at very most,
petitioner showed opportunity and motive on respondent's part to effect disposition in his favor. In re Estate of
D'Agostino (2001, 3d Dept) 284 AD2d 857, 728 NYS2d 234.
The surrogate has no discretion to refuse to admit to probate a will or codicil executed in compliance with this
section by one possessing testamentary capacity and under no undue influence. Re Strickland's Will (1939) 172 Misc
976, 16 NYS2d 666.
A will, made by a person who was in all respects competent to make it, was acting under no restraint, and executed
it in accordance with the provisions of § 21, will be admitted to probate as the last will and testament of the decedent,
valid to pass both real and personal property. Re Lewis' Estate (1948) 193 Misc 183, 80 NYS2d 757.
Uncontested finding of probate court that testator was of sound mind and competent to execute his will would not
prevent beneficiary from challenging validity of deed executed on that same day by decedent, prior to his death, as well
as raising and litigating issue of grantor's state of mind. Re Will of Turner (1976) 86 Misc 2d 132, 382 NYS2d 235.
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In probate proceeding, objectants were entitled to trial on issue of whether will, which left bulk of state to hospital,
was product of undue influence, where attorney draftsman represented hospital in its legal matters and served as
chairman of board of directors, notwithstanding that request was made to attorney's charity. In re Estate of Edel (1999,
Sur) 182 Misc 2d 878, 700 NYS2d 664.
13. Partial admission to probate
The surrogate may admit to probate part of a will duly executed and refuse probate to a part thereof not duly
executed if they are severally separable, independent and concrete. Re Foley's Will (1912) 76 Misc 168, 136 NYS 933.
II. Testamentary Instruments and Dispositions
14. In general; time transfer effective
Whether or not an instrument is testamentary in character and therefore subject to the requirements of § 21, is
dependent upon whether or not it confers a present right upon a beneficiary or whether it is to have no effect until the
death of the maker. Re Deyo's Estate (1943) 180 Misc 32, 42 NYS2d 379; Speaker v Keating (1941, DC NY) 36 F Supp
556, revd on other grounds (CA2 NY) 122 F2d 706.
Inter vivos transfers to a trustee not testamentary in character could not be probated. Re Gardner's Will (1959) 16
Misc 2d 641, 184 NYS2d 932.
The law does not require that a will or testament be in any particular form. The character of the instrument must be
determined by the dispositions which it makes. Re Dash's Will (1953, Sur) 120 NYS2d 621.
15. Delivery
While the element of delivery essential to a valid gift may be fulfilled by delivery to a third person in behalf of the
donee, the handing of the property to an agent of the donor for delivery to the donee, as here, is insufficient to bequeath
personalty. Re Hilliard's Estate (1935) 154 Misc 872, 278 NYS 675.
Where decedent delivered the assignment of certain mortgages to his attorney with instructions to in turn deliver
them to two named nephews at decedent's death, and testator subsequently reassigned part of the mortgages and
discharged others, there was no gift in trust or causa mortis or inter vivos, but rather a testamentary disposition, which
was invalid for want of compliance with this section. Re Fitzpatrick's Estate (1940, Sur) 17 NYS2d 280.
16. Instrument reserving title or incident thereof
Daughters of a decedent cannot claim title to a mortgage by virtue of the assignment thereof or to furniture by
virtue of a bill of sale, where both instruments reserved title in the decedent until his death and were, therefore,
testamentary in character, and not having been executed in the form required for the execution of a will, were void. Re
Peno's Estate (1927) 128 Misc 718, 221 NYS 205.
Two documents whereby decedent conveyed bonds to his sisters, reserving the right to revoke, were void as
attempted testamentary dispositions, not executed in accordance with this section. Re Will of Flamenbaum (1957) 6
Misc 2d 122, 159 NYS2d 887.
Instruments are not testamentary in character, requiring formal execution as wills, because an insured, reserving the
right to revoke trusts in whole or in part and retaining control of the insurance policies making up the sole assets of the
trusts, enters into an agreement with a beneficiary of the policies as to manner of distribution of proceeds thereof after
his death. Re Kent's Trust (1961) 28 Misc 2d 196, 212 NYS2d 657.
17. Contract to make will
A contract to make or to refrain from altering a will amounts for all practical purposes to a testamentary disposition.
If enforceable, it is little different from a will and, as often as not, will result in the complete subversion or nullification
of a will executed in accordance with the stringent requirements surrounding the making of such an instrument. Hence,
an oral agreement executed in Florida to make a will in favor of plaintiff was not enforceable in New York although
such an agreement was valid and enforceable under Florida law. Rubin v Irving Trust Co. (1953) 305 NY 288, 113
NE2d 424.
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Use of plural pronouns throughout joint will, such as "we" declare this "our" last will and "we" give "our" property,
constitutes substantial indication that binding contract was formed. Re Estate of Warych (1976, 3d Dept) 55 AD2d 700,
389 NYS2d 49.
Although there was no express prohibition in joint will precluding survivor from disposing of remaining property
by later will, language contained in joint will "to use, have and to dispose of during the lifetime of either of us" strongly
indicated that joint will was intended to be binding contract. Re Estate of Warych (1976, 3d Dept) 55 AD2d 700, 389
NYS2d 49.
A joint reciprocal will executed by the decedent and his wife was not a contract between the parties and the
decedent was free to do anything that he wished with his real and personal property, where the will contained the
provision that the survivor was to receive all the property of the estate of whatever kind or nature absolutely and without
any condition or limitation whatsoever, and where no subsequent provision appeared that demonstrated a clear intention
to make the will contractually binding upon the parties; the court also properly declined to admit extrinsic evidence
concerning the intent of the parties at the time the will was executed, since the terms of the will were not ambiguous.
Re Estate of Wierzbieniec (1983, 4th Dept) 93 App Div 2d 978, 461 NYS2d 653.
18. Letters and memos
Where will directed disposal of personal property in accordance with memorandum to be left in one of specified
places and in absence of memorandum disposal to be at discretion of niece, but memorandum found was unattested and
therefore not open to probate, property passed to niece under the will. Re Estate of Salmon (1965) (1st Dept) 24 AD2d
962, 265 NYS2d 373.
Codicil would be admitted to probate where it was in form of letter written in decedent's hand which stated that it
was codicil to decedent's will and which closed with words "Love Mother." Re Estate of Kenneally (1988) 139 Misc 2d
198, 528 NYS2d 314.
A letter written by decedent to her brother at the time of a loan which she made to him, stating that if anything
happened to the decedent, the brother was to have the money outright, is ineffective as a will bequeathing to him the
amount of the indebtedness, since the writing was not executed in accordance with this section. Re Fry's Will (1946,
Sur) 65 NYS2d 831.
Letters of a decedent may not be used as a will or codicil and the court cannot create a disposition for a testator who
has failed to make one as provided by law Re Cuff's Will (1953, Sur) 118 NYS2d 619.
19. Inter vivos trusts
Supreme Court judgment which incorporated stipulation, executed by settlor and all other parties concerned in
original trust instrument, and instructed trustees as to disposition of trust fund was an application of doctrine of cy pres
to inter vivos charitable trust and constituted an "amendment", rather than a termination, of trust within statute relating
to wills, and thus provision of settlor's will effectively poured over residuary estate to inter vivos charitable trust. Re
Estate of Nurse (1974) 35 NY2d 381, 362 NYS2d 441, 321 NE2d 537.
There is no necessity for execution in the manner required for a will of a trust instrument executed in the donor's
lifetime which distributes during his lifetime all his interest in the trust property in the event he predeceases his wife,
with remainder to appointees or distributees of the wife, notwithstanding the trust was otherwise not to take effect until
death of the settlor. Re Kent's Trust (1961) 28 Misc 2d 196, 212 NYS2d 657.
20. Insurance
Where the payee of a matured life policy did not elect the option as contained and prescribed in the policy and the
mode of settlement but elected quarterly interest payments, rather than payments payable at the end of each year as
prescribed in the policy, the transaction was not invalid as an attempt at testamentary disposition. Hall v Mutual Life
Ins. Co. (1953) 282 AD 203, 122 NYS2d 239, affd 306 NY 909, 119 NE2d 598.
Instruments are not testamentary in character, requiring formal execution as wills, because an insured, reserving the
right to revoke trusts in whole or in part and retaining control of the insurance policies making up the sole assets of the
trusts, enters into an agreement with a beneficiary of the policies as to manner of distribution of proceeds thereof after
his death. Re Kent's Trust (1961) 28 Misc 2d 196, 212 NYS2d 657.
Page 16
NY CLS EPTL § 3-2.1
Clauses in life insurance contracts on the life of a decedent's son transferring ownership of the policies from
decedent to his son upon the death of decedent create a third-party beneficiary contract, performable at death, and, like
many similar instruments, contractual in nature, which provide for the disposition of property after death, they need not
conform to the requirements of the statute of wills (EPTL 3-2.1); these clauses are not testamentary dispositions but
valid contractual conditions and, therefore, must be given full force and effect. Re Estate of Alvord (1979) 99 Misc 2d
367, 416 NYS2d 196.
An insurance contract is a form of testamentary substitute and the terms and conditions contained therein are
enforceable without regard to the statute of wills. Re Estate of Alvord (1979) 99 Misc 2d 367, 416 NYS2d 196.
21. Forgiveness of debt
A purported cancellation of note owed by the appellant to the decedent was forgiveness of debt by attempted
testamentary disposition which fails for lack of testamentary formalities required by this section. Re Cary's Estate
(1942) 263 AD 348, 33 NYS2d 232.
A recording officer should not accept for filing a certificate of discharge of mortgage making a gift of the balance
due, effective upon mortgagee's death, to the mortgagors of the unpaid balance of the mortgage, although such an
instrument may be recorded as purporting to discharge the mortgage without notation of record that it is in fact
discharged. 1964 Ops Atty Gen Feb 26.
22. Mortgage provisions
A clause in an extension agreement of a bond and mortgage, which provides that "in the event of the death of the
party of the first part (the mortgagee) prior to the 7th day of March, 1940, the interest is to be paid one-half to brother of
the party of the first part and one-half to the heirs of the deceased sister of the party of the first part and the principal
paid the same at the time of maturity," constitutes an attempted testamentary disposition in violation of this section and
is void. McCarthy v Pieret (1939) 281 NY 407, 24 NE2d 102, reh den 282 NY 800, 27 NE2d 207.
Paper which conferred on mortgagor the right upon death of the mortgagee to cancel mortgage and recited the
consideration therefor, was non-testamentary in character. Love v Tames (1954, Sup) 135 NYS2d 609.
23. Partnership or membership agreements
Investment club agreement transferring decedent's share to his wife at his death was not invalid as an attempted
testamentary disposition. Re Will of Hillowitz (1968) 22 NY2d 107, 291 NYS2d 325, 238 NE2d 723.
An agreement which provided that in the event of the death of one partner, the surviving partner had the sole right
to purchase the full interest in the partnership of the deceased for the sum of $ 100 was valid and enforceable, and not
testamentary in character. Gabay v Rosenberg (1968, 2d Dept) 29 AD2d 653, 287 NYS2d 451, affd 23 NY2d 747, 296
NYS2d 795, 244 NE2d 267.
A Partnership agreement executed in compliance with the statutory provisions and testamentary in character would
be admitted to probate as a will although the certificate signed by the witnesses did not describe the instrument as such
or state that the decedent declared the same to be such. Re Dash's Will (1953, Sur) 120 NYS2d 621.
24. United States Savings Bonds
United States Savings Bonds purchased in the name of the decedent and "payable on death" to a named beneficiary
remain nevertheless the property of the estate, inasmuch as a decedent retained the right to cash the bonds during his
lifetime and accordingly the designation of the beneficiary represented a testamentary disposition, invalid because not
executed in compliance with this section. Deyo v Adams (1942) 178 Misc 859, 36 NYS2d 734.
Designation of beneficiaries on the face of United States Savings Bonds to whom the proceeds thereof are payable
on the death of the owner does not constitute a testamentary disposition of property requiring compliance with the
formalities of this section, since the present interest passes to the beneficiary insofar as the owner cannot substitute a
second beneficiary during the lifetime of the original beneficiary without surrendering the bonds for redemption. Re
Deyo's Estate (1943) 180 Misc 32, 42 NYS2d 379.
Page 17
NY CLS EPTL § 3-2.1
United States Savings Bonds become the property of the named beneficiary upon the death of the owner in
accordance with the regulations of the Secretary of the Treasury, notwithstanding that such constitutes a testamentary
disposition in violation of this section, since the Federal Government although normally having no constitutional power
to regulate testamentary dispositions, may make such regulations as to War Bonds under its emergency war powers.
Re Karlinski's Estate (1943) 180 Misc 49, 43 NYS2d 40.
Where a testator during his lifetime purchased non-transferable United States Savings Bonds which he had
registered in his own name, payable on death to named beneficiaries, the beneficiaries acquired at the time of purchase a
present interest therein which was not revocable by testator and accordingly such registration was therefore not a
testamentary act to be performed pursuant to this section. Re Kalina's Will (1945) 184 Misc 367, 53 NYS2d 775, app
dismd 270 AD 761, 59 NYS2d 525.
25. Copies of instruments
The law does not require that a will be written by any particular marking device, and, where it appears that a carbon
copy was the only instrument executed by testator, the fact that it is a copy rather than the original impression does not
affect its eligibility for probate. Estate of Saxl (1961) 32 Misc 2d 481, 222 NYS2d 765.
26. Support agreements
A provision in a separation agreement which was entered into as proposed basis for fixing the extent of the wife's
right to support and as limiting the husband's obligations toward her, could not be considered testamentary in character
requiring execution as required for a will, merely because it contained provisions concerning her rights in a leasehold of
residence property then standing in the name of the husband which could, and did, expire long before the husband's
death. Re Estate of Robinson (1963) 39 Misc 2d 43, 240 NYS2d 48.
An arrangement in which decedent's sister was made nominee owner of decedent's property and was given an oral
promise that she would be taken care of after the decedent's death was not a valid testamentary disposition. Rubin v
Kurzman (1977, SD NY) 436 F Supp 1044.
27. Other instruments and dispositions
A custodian agreement executed by the decedent and a bank whereby the latter was constituted the mere agent of
the decedent during his lifetime to administer certain funds is ineffective insofar as it purports to establish a
testamentary trust for the benefit of the decedent's wife upon his death and to dispose of the corpus of the trust upon the
death of the life beneficiary, since the instrument did not create an inter vivos trust and was not executed in accordance
with the provisions of this section. Re Ihmsen's Estate (1938) 253 AD 472, 3 NYS2d 125.
Designation of a beneficiary for the payment of a death benefit under the New York State Teacher's Retirement
System does not constitute an invalid attempt to make a will. Moyer v Dunseith (1943) 180 Misc 1004, 46 NYS2d 360,
affd 266 AD 1008, 45 NYS2d 126.
A document, though signed and witnessed by the testatrix, could not be considered as impressing a personal trust
on executors who, by her will, were given absolute discretion in distribution of her personal belongings among members
of the family, particularly where the instrument expressing her wishes and desires as to how such items should be
distributed among particular relatives was not executed until after the will had been ratified and confirmed by a later
codicil. Re Estate of Voice (1963) 38 Misc 2d 779, 238 NYS2d 736, affd 19 AD2d 945, 245 NYS2d 310.
Two wills were treated as duplicate originals, although they were not truly identical, where second will was English
translation of first will which was executed in Hebrew, both wills were duly executed under CLS EPTL § 3-2.1, and
dispositive provisions of both will were identical. In re Estate of Rosenak (2000, Sur) 184 Misc 2d 807, 710 NYS2d 813.
III. Signature of Testator
28. In general
Execution of will was not invalid on ground that decedent declared document to be his will before, rather than after,
he signed it. In re Estate of Bernatowicz (1996, 4th Dept) 233 AD2d 838, 649 NYS2d 625.
Page 18
NY CLS EPTL § 3-2.1
There is a presumption of proper execution where the signatures of testator and the witnesses together with the
attestation clause are proper on their face. Re Will of Zipkin (1956) 3 Misc 2d 396, 153 NYS2d 783.
Will can be signed with initials, testator's mark or any lines visible on paper. Re Estate of Kenneally (1988) 139
Misc 2d 198, 528 NYS2d 314.
Where codicil ends with word which indicates testatrix' relationship to beneficiaries, rather than with name,
statutory requirement is satisfied iftestatrix intended it to be her signature. Re Estate of Kenneally (1988) 139 Misc 2d
198, 528 NYS2d 314.
A propounded instrument which is not subscribed by the testator, although containing an attestation clause and
signed by two subscribing witnesses may not be probated. Re Kurtz' Will (1946, Sur) 64 NYS2d 749.
29. Mistake
A will which was otherwise executed with the required formalities was admissible to probate even though the
decedent and his wife, intending to execute mutual wills at a common execution ceremony, each executed by mistake
the will intended for the other, where there was no question of the decedent's testamentary capacity, or his intention and
belief that he was signing his last will and testament, and where except for the obvious differences in the names of the
donors and beneficiaries on the wills, they were in all other respects identical. Re Snide (1981) 52 NY2d 193, 437
NYS2d 63, 418 NE2d 656, on remand (3d Dept) 80 AD2d 276, 439 NYS2d 690.
In a probate proceeding, the wills of a husband and wife were properly admitted to probate where they were
identical but for the names of the spouses, each spouse having mistakenly executed the will drawn for the other. Re
Estate of Snide (1981, 3d Dept) 80 App Div 2d 276, 439 NYS2d 690.
A decedent husband's testamentary instrument, not meeting the formal requirements of execution (EPTL 3-2.1)
because the husband mistakenly signed his wife's will while his wife mistakenly signed her husband's will, is admitted
to probate since the Surrogate's Court, through the equity jurisdiction granted to it by SCPA 201, has the power to
reform such will to comply with the testator's intent. Re Estate of Snide (1978) 96 Misc 2d 513, 409 NYS2d 204.
Where, by mistake, each spouse signed the instrument prepared for the other, when executing their wills
simultaneously, both wills are invalid. Re Cutler's Will (1945, Sur) 58 NYS2d 604.
30. Initials
Where testator affixed to his will a holiday seal printed in colors and thereon inscribed his initials above and below
the word "seal," which was also in his handwriting, the requirements of the statute that a will must be subscribed by the
testator are satisfied if he intended the holiday seal and his inscription thereon as a signature. Re Severance's Will
(1916) 96 Misc 384, 161 NYS 452.
31. Mark
The fact that a decedent, who could read and write, did not sign her name to her will, but simply made her mark,
does not of itself invalidate the will, and the mark may become her signature within the meaning of this section. Re
Irving's Will (1912) 153 AD 728, 138 NYS 784, affd 207 NY 765, 101 NE 1101.
A signature by a mark is sufficient as a subscription within the meaning of this section. Re Stegman's Will (1929)
133 Misc 745, 234 NYS 239, affd 227 AD 647, 235 NYS 890.
Act of testatrix in affixing an "X" mark on line provided for her signature at end of will in view of two subscribing
witnesses was substantially in compliance with requirements of due execution. Re Estate of Galvin (1974) 78 Misc 2d
22, 355 NYS2d 751.
Will was properly executed and subject to probate where decedent, who was blind, executed will with his cross
mark in presence of witnesses and attesting witness signed decedent's name at his request. Re Estate of McCready
(1975) 82 Misc 2d 531, 369 NYS2d 325.
Decedent, who could neither read nor write, executed her will in accordance with the requirements of EPTL 3-2.1
where she placed her "X" mark on the signature line; the words "her mark" added to the signature line by the attorney,
who then signed decedent's name, may be treated as meaningless surplusage, and counsel's own signature as an attesting
Page 19
NY CLS EPTL § 3-2.1
witness may be counted as 1 of the 2 required attesting witnesses. Accordingly, inasmuch as the court is satisfied that
the will was properly executed and that the testatrix was, at the time of execution, in all respects competent to make a
will and free from restraint, the propounded instrument is admitted to probate. Matter of Corrato, 142 Misc 2d 187.
A will is properly subscribed where the testatrix affixed a cross mark in the space provided for her signature, the
pen being held by the decedent and guided by her attorney. Re Surak's Will (1944, Sur) 48 NYS2d 400.
A will was duly executed by a testatrix who could neither read nor write the English language where it was
executed by her cross-mark. Will of Santamorina (1961, Sur) 213 NYS2d 555.
32. --Evidence and burden of proof
Where the attestion clause of a will sets forth that it was signed and acknowledged by the testator in the presence of
the subscribing witnesses, who are all dead, the fact that the testator, who made his mark, signed the instrument, may be
established by proof of the genuineness of the signatures of the subscribing witnesses. Re Corcoran's Will (1911) 145
AD 129, 129 NYS 165.
Where the decedent was illiterate the proponent of a will must show more than usual subscription and execution of
the will by the decedent, but it is enough to show that after subscription of the will by the attesting witnesses the will
was read back to decedent, who stated, in English, that she wanted everything left to the named beneficiary, even
though the will is signed merely with her "X". Re Will of Gerdik (1961) 30 Misc 2d 1086, 220 NYS2d 706.
33. Fingerprints
A will may be admitted to probate, where the decedent, who could neither read nor write English, affixed his
fingerprints before witnesses to a conventional form of a will on the dotted line ordinarily used for the signature. Re
Romaniw's Will (1937) 163 Misc 481, 296 NYS 925.
Subscription of a will by fingerprints complies with this section. Re Arcowsky's Will (1939) 171 Misc 41, 11
NYS2d 853.
34. Device, emblem, or seal
Where the testator affixed to his will a holiday seal printed in colors and thereon inscribed his initials above and
below the word "seal," which was also in his handwriting, the requirements of the statute that a will must be subscribed
by the testator are satisfied if he intended the holiday seal and his inscription thereon as a signature. Re Severance's
Will (1916) 96 Misc 384, 161 NYS 452.
35. Assistance in signing
Surrogate's Court properly determined that will was duly executed where uncontroverted evidence established that
decedent signed her will herself, and that one witness merely supported her arm while she did so. In re Estate of Morris
(1994, 2d Dept) 208 AD2d 733, 617 NYS2d 513.
Fact that decedent did not request assistance but, rather, that his counsel suggested that he be assisted did not render
signature invalid. In re Estate of Bernatowicz (1996, 4th Dept) 233 AD2d 838, 649 NYS2d 625.
If a testatrix is physically unable to sign her name she may call in another to her aid even to the holding of her hand
and guiding it, and so long as there is the conscious wish of the testatrix that her hand should make the signature and she
participates in any degree in the making of it and acquiesces in and adopts the signature thus made, there has been a
sufficient compliance with the statute. Re Baumann's Will (1914) 85 Misc 656, 148 NYS 1049.
A verdict will be directed admitting a will to probate, though circumstances surrounding the execution indicate that
the testatrix, by reason of physical disability, was unable to sign without assistance, and that one of the subscribing
witnesses guided her hand in signing her name. Re Bitzer's Will (1924) 124 Misc 432, 208 NYS 824.
A will is properly subscribed where the testatrix affixed a cross mark in the space provided for her signature, the
pen being held by the decedent and guided by her attorney. Re Surak's Will (1944, Sur) 48 NYS2d 400.
36. Signature by agent
Page 20
NY CLS EPTL § 3-2.1
Decedent "subscribed" her name to instrument offered for probate within the meaning of this section where the
decedent at the time was critically ill and in an oxygen tent, and due to her condition the attending physician would not
permit her to affix her signature to the paper, but where it is established by two disinterested subscribing witnesses that
decedent's husband signed her name to the writing at her request, in her presence and in presence of two witnesses and
that she acknowledged the name so written as her signature. Re Lawler's Will (1943) 182 Misc 67, 49 NYS2d 955.
While the provisions of § 21 seem to contemplate that a testamentary instrument must be "subscribed" at the end
thereof by the testator in person, the common-law rule that performance of the physical act may be delegated to another
is impliedly recognized in § 22. Re Lewis' Estate (1948) 193 Misc 183, 80 NYS2d 757.
A codicil was properly executed where it was shown to decedent, then in an oxygen tent, and he was informed of
its substance and that it carried out his instructions previously given; he declared it to be his codicil and requested the
person named as executor to subscribe it as his agent, whereupon the agent and three witnesses signed the will in an
adjoining room, the agent adding his own signature indicating that he was acting as agent, and following such execution
the decedent acknowledged the instrument, at which time the contents of the instrument were repeated to make sure
testator knew what was being done. Re Silverman's Will (1950) 198 Misc 274, 97 NYS2d 490.
Propounded instrument was admitted to probate where testimony of witnesses clearly established that subscription
was made for decedent and signature was adopted by decedent. Re Estate of McInally (1957) 7 Misc 2d 625, 163
NYS2d 793.
Will on which testatrix' name was signed by another was not valid where person signing name of testatrix failed to
sign his own name. Re Will of Helgesen (1975) 80 Misc 2d 726, 363 NYS2d 796.
Will "signed and executed" by testator's attorney at testator's direction, in presence of 2 attesting witnesses, was
entitled to probate notwithstanding fact that attorney did not sign his own name or affix his residence address as
required by CLS EPTL § 3-2.1(a)(1)(C), since (1) scenario that statute was designed to prevent (person signing for
testator also acting as one of attesting witnesses) was not present, and (2) all persons interested in estate had executed
waivers. Re Estate of Merklinger (1992, Sur) 154 Misc 2d 902, 586 NYS2d 736.
A will signed by the attorney for the testatrix and witnessed by him at her direction was admissible to probate
where the proof showed that the testatrix was physically incapacitated and unable to sign her name. The will may be
subscribed by the agent of the testatrix. Re Gallagher's Will (1953, Sur) 123 NYS2d 912.
IV. Subscription at End
37. In general
The end of the dispositive language, not the paper on which it is written, is the proper interpretation of the provision
of this section that the testator must subscribe "at the end" of the will. Re Golden's Will (1937) 165 Misc 205, 300 NYS
737, affd 253 AD 919, 3 NYS2d 886.
The purpose of the requirement in this section that the testator and witnesses sign at the end of the will is to prevent
fraudulent additions after its execution, and where a will is executed in such manner that such a fraud could not have
been perpetrated, this requirement should ordinarily be considered as met. Re Estate of Young (1962) 36 Misc 2d 718,
233 NYS2d 922.
Due execution of a will by the testator and witnesses "at the end" is a question which must be decided by the court
as matter of law but which, as a practical matter, can only be determined from factual evidence presented to the eye.
Re Estate of Young (1962) 36 Misc 2d 718, 233 NYS2d 922.
The purpose of the statutory requirement that a will be subscribed at the end thereof, is the prevention of fraud
through insertions or additions to a testamentary document subsequent to its execution. Re Hildreth's Will (1942, Sur)
36 NYS2d 938.
Although subscription at the end of a will is an essential requirement, it is to be construed liberally in favor of the
will and no rules of construction should extend beyond such statutory requirement. Re Rivers' Will (1945, Sur) 58
NYS2d 589.
38. Effect of subscription at beginning of instrument
Page 21
NY CLS EPTL § 3-2.1
In a proceeding for the probate of a decedent's will, where the decedent's signature appears on the first of four
pages, with the attestation clause, signatures and addresses of the witnesses immediately below, the will was not signed
at the end and cannot be probated. Re Jarvis' Estate (1932) 143 Misc 641, 257 NYS 829.
39. Partial invalidity of instrument
Such part of the instrument as was added after the decedent's signature is no part of the instrument. Re Mackey's
Estate (1930) 136 Misc 413, 243 NYS 229.
Propounded writing was admitted to probate, minus text following the attestation clause, where the instrument
appeared to have been duly executed in accordance with this section. Re Estate of Strong (1957) 7 Misc 2d 874, 162
NYS2d 835.
The appointment of the executor appearing on the paper after the testator's signature does not void the entire
instrument and does not destroy the valid provisions preceding his signature. However, the provisions following his
signature appointing an executor are ineffective. Re Estate of Lewandowski (1969) 60 Misc 2d 1005, 304 NYS2d 263.
The addition of a designation of executrices at a point on the will below the signature of the testatrix subsequent to
the valid execution of the instrument, will not invalidate the entire instrument but the designation itself is of no effect.
Re Foster's Will (1944, Sur) 51 NYS2d 930.
Where decedent had signed his name to an instrument purporting to be his will and thereafter in the space below his
name left a dollar each for his wife, son and daughter, all of which was signed by one witness present when the
decedent signed and by a second witness who signed the paper at a later time at decedent's request, the material thus
added after the decedent's signature was of no effect. Also of no effect was another addition to the paper purporting to
be the will where it appeared from the testimony and the appearance of the writing that it was written and subscribed by
the decedent at a later date but was not attested. Re Begun's Will (1953, Sur) 123 NYS2d 782.
40. Codicils added after date of subscription
A duly executed codicil inserted in a blank space in a previously executed will will be admitted to probate. Re
Johnson's Estate (1938) 169 Misc 215, 7 NYS2d 81.
A will is entitled to probate notwithstanding the presence of a "codicil" written below the attestation clause and
opposite the signatures of the subscribing witnesses, where the testimony of the witnesses and the date written in the
purported codicil clearly established the latter was added after the execution of the will. Re Moller's Will (1946, Sur)
61 NYS2d 638.
41. Misplacement as invalidating entire will; prior law
An instrument is not signed at the end and accordingly not admitted to probate, where the signature of the testator,
the attestation clause and the signatures of the witnesses are followed by certain bequests and a clause disposing of the
residuary estate. Re Ryan's Will (1930) 252 NY 620, 170 NE 166.
Where there are dispositive clauses beyond and following the spaces for the testator's signature and the attestation
clauses on a will form, the will has not met the requirements of subd. 1 even though the additional dispositive clauses
were noted as "continued on page 3" and even though the will was not signed and attested until the additional
dispositive matter had been printed in on page 3. Re Schroeder's Will (1916) 98 Misc 92, 163 NYS 956.
Probate of a document offered as the last will of the testatrix was denied, where eight legacies appear on the
instrument after the signatures of the testatrix and the subscribing witnesses. Re Reilly's Will (1927) 129 Misc 77, 220
NYS 781.
That all other formalities have been followed does not cure the defect of failing to subscribe the document at the
end as required. Re Crosson's Estate (1929) 134 Misc 154, 235 NYS 711.
Where evidence establishes that a writing dispositive in character on the second page of a will was there when the
signatures were placed upon the first page, probate must be denied. Re Crosson's Estate (1929) 134 Misc 154, 235
NYS 711.
Page 22
NY CLS EPTL § 3-2.1
Probate of an instrument is denied, where on the back of the first sheet, on which the decedent and the witnesses
had appended their signatures, the decedent disposed of furniture, cut off any of beneficiaries who might attempt to
cause trouble or litigation, and empowered his executors to rent property and gave them power of sale. Re
Roughgarden's Will (1937) 162 Misc 455, 295 NYS 355.
An addition to a will after the signature of the decedent will void the instrument if the subscription bears any direct
relation to the disposition of property or the administration of the estate; otherwise merely the addition is inadmissible
to probate. Re Scheck's Estate (1939) 172 Misc 236, 14 NYS2d 946.
Where the signature of the testator or a necessary witness is written above matter which is dispositive, operative,
material or important, the subscription is not made at the end of the instrument and it is therefore invalid as a will. The
rule should strictly be applied and no exception may be made with respect to holographic wills. Re Begun's Will (1953,
Sur) 123 NYS2d 782.
42. --Where nondispositive writings appear below subscription
Notations on a will following the signatures of the decedent and witnesses held not to amount to testamentary
dispositions which would disentitle the instrument to probate for failure to comply with the provisions of this section as
to due execution. Re King's Will (1962, 1st Dept) 16 AD2d 614, 226 NYS2d 239.
A clause in a will added below the signature of a testatrix which neither affects the disposition of the estate nor
appoints an executor or guardian does not invalidate the will within the meaning of this section which requires that
"every will . . . shall be subscribed by the testator at the end of the will. . . ." Re McConihe's Estate (1924) 123 Misc
318, 205 NYS 780.
In view of the holdings that the addition of immaterial and non-dispositive matters following the signature of the
testator does not infringe the statutory requirement for subscription "at the end of the will" under this section, because
such expressions are not in reality parts of the will, it follows that non-dispositive directions are not a part of the will no
matter in what part of the testamentary paper they are found. Re Draske's Will (1936) 160 Misc 587, 290 NYS 581.
Where a will was properly signed at the end by the decedent and the witnesses, the appending of a diagram
showing the property divided by a paragraph of the will is without legal significance, and the will may be admitted to
probate over the contention that the instrument was not properly executed because the witnesses did not sign the
diagram sheet. Re Schmitt's Will (1946) 187 Misc 409, 61 NYS2d 569, app dismd (AD) 63 NYS2d 215.
43. --Where executors appointed below subscription
Where a will is signed by both the testator and the two witnesses above the nomination of executors in the
instrument, the entire will is invalid. Re Winters' Will (1950) 277 AD 24, 98 NYS2d 312, affd 302 NY 666, 98 NE2d
477, remittitur den 302 NY 845, 100 NE2d 43.
The requirement that the instrument "be subscribed by the testator at the end of the will," is not met where the only
thing which can be considered the testator's signature is followed by a clause appointing an executor or executors. Re
Will of Uhl (1961) 29 Misc 2d 124, 218 NYS2d 225.
A subscription by decedent above a clause appointing executors renders the instrument invalid as a testamentary
disposition of property, since there is a failure to comply with the statutory requirement that the will be signed at the
end. Re Foster's Will (1944, Sur) 51 NYS2d 930; Re Steiner's Will (1932) 142 Misc 710, 255 NYS 397; Re
Bongiovanni's Estate (1931) 140 Misc 436, 251 NYS 723; Re Tyner's Will (1930) 138 Misc 192, 245 NYS 206; Re Van
Tuyl's Will (1917) 99 Misc 618, 166 NYS 153.
44. Relation to attestation clause
The signature of a testator beneath the attestation clause is a sufficient compliance with the statute. Re Busch's
Will (1914) 87 Misc 239, 150 NYS 419.
The appearance of the decedent's signature immediately preceding the in testimonium clause does not invalidate the
subscription, under this section, where she intended the writing of her name at that place to be a subscription of the
instrument. Re Ficken's Will (1932) 143 Misc 407, 256 NYS 617.
Page 23
NY CLS EPTL § 3-2.1
Will is signed at the end within the meaning of subd 1 of the above statute where there appears after the testator's
signature and before that of the witnesses: "In Witness Whereof, I have hereunto set my hand and affixed my seal this
1st day of April 1957," inasmuch as there is no dispositive language after the signature. Re Will of Angevine (1965) 45
Misc 2d 389, 256 NYS2d 952.
Where the testator signed his name in the midst of an attestation clause, which appeared at the end of the
dispositive provisions of the will, the signature is at the end of the will within the meaning of this section. Re Rivers'
Will (1945, Sur) 58 NYS2d 589.
45. Relation to witnesses' signatures
Nothing in this section requires that the signatures of the testator and witnesses be contiguous, and signatures of
witnesses may be considered as being at the end of the will where it is written on a single sheet of paper with testator's
signature at the bottom and the witnesses' signatures longitudinally appended on the left margin. Re Estate of Young
(1962) 36 Misc 2d 718, 233 NYS2d 922.
The fact that the testatrix's signature appeared below the witnesses' signatures on her will would not be fatal to the
probate of the will where, though it is preferable that signatures of witnesses be subscribed either beneath or next to the
signature being witnessed, all of the signatures on the subject will followed the dispositive provisions of the will as
required by EPTL § 3-2.1(a); additionally, the witnesses' failure to utilize the attestation clause on the printed will
form would not be fatal to the probate of the will, since an attestation clause is not a statutory prerequisite to a valid
will. Re Estate of Bochner (1983) 119 Misc 2d 937, 464 NYS2d 958.
The fact that the subscriptions of testator and the witnesses are not contiguous does not affect the validity of the
will where both appear after the end of the will Hence, probate was granted an instrument which consisted of three
pages and which was signed by the witnesess on page 2 and by the testator on page 3 thereof Re Mackris' Estate (1953,
Sur) 124 NYS2d 891.
46. Subscription on back of will
An indorsement on the reverse side of a paper purporting to make testamentary dispositions of property, in the
handwriting of the alleged testatrix, to identify the character of the paper without unfolding it, is not a subscription, at
the "end of the will." Re Pierce's Will (1920) 113 Misc 311, 184 NYS 536.
An undated instrument purporting to be a will is fatally defective for want of proper subscription by the decedent
where the signatures of three witnesses follow the printed matter, but that of the decedent appears on the back of a paper
following the words "Last Will and Testament of." Re Gagen's Will (1944, Sur) 46 NYS2d 215.
47. Subscription in margin or the like
In probate proceedings, a file card that contained writing on both sides, and that contained the signatures of
attesting witnesses on the back side, would not be admitted to probate where decedent's signature had been
perpendicular in the margin on the front side, where there had been ample room for decedent to sign at the end of the
writing, where the front side referred to funeral arrangements, and where the back side contained dispositive provisions.
Re Estate of Zaharis (1982, 3d Dept) 91 App Div 2d 737, 457 NYS2d 995.
The court denied probate of an envelope which contained a single dispositive sentence bequeathing everything to a
named sister, if living, and if not to a named cousin, and which bore the signatures of decedent and the witnesses at right
angles to the sentence. Re Estate of Parkman (1956) 3 Misc 2d 1014, 156 NYS2d 22.
48. Folded wills
Where a single paper, consisting of two sheets of legal cap woven together in the web and folded so as to make four
pages, was used in drafting a will, and the writing was commenced on first page, continued consecutively on fourth
page and concluded on second page with signature of testator, and there is no writing or signature on the third page, the
instrument is signed at the end thereof within meaning of the statute of wills and is entitled to probate. Re Peiser's Will
(1913) 79 Misc 668, 140 NYS 844.
Where an instrument in writing consisting of one sheet was so folded as to make four pages, on the first of which
appeared the signatures of the testator and attesting witnesses, and on the second page testamentary dispositions,
Page 24
NY CLS EPTL § 3-2.1
probate will be denied on ground that the writing was not signed at the end. Re Buckenthien's Will (1920) 112 Misc
163, 184 NYS 189.
49. Form wills
A will was legally executed and entitled to probate where it appears that a blank form of will was used; that a
clause disposing of the testatrix's entire estate was written in on first page; that the testatrix subscribed the will at the
end of the first page; that the witnesses signed after the testimonium clause on the third page; that after they signed the
will the name of the executor was filled in on the third page and the blank date in the testimonium clause and the blanks
in the attestation clause were filled in and then the witnesses again signed their names after the attestation clause. Re
Serveira's Will (1923) 205 AD 686, 200 NYS 464.
Probate was denied where testator signed his name in the introductory clause of a four-page printed will form. Re
Klee's Estate (1956) 2 Misc 2d 512, 153 NYS2d 346.
A will is subscribed at the end thereof, in compliance with this section, where the testator, using a printed form
consisting of a single sheet of paper folded to make two leaves and four pages, signed at the bottom of the first page, her
signature being attested by two witnesses whose signatures appear below testatrix', even though about two-thirds of the
third and fourth pages have been detached including a printed attestation clause and a place for testatrix' signature on
the third page which apparently she had signed but had detached before the attested execution. Re Curtiss' Will (1943,
Sur) 41 NYS2d 420.
50. --Folded form wills
Where a will drawn on a blank consisting of one sheet of paper folded so as to make four pages, was signed by the
testator and the subscribing witnesses on the first page, and by the testator alone on the third page, it is not signed at the
"end of the will" as provided by subd. 4. Re Reisner (1913) 81 Misc 101, 142 NYS 1074.
Where a stationer's blank form folded across the short way of the paper making four pages, none of which were
numbered, was used by decedent in making his last will, and on the fourth page, more than half of which is blank, and
on which there is no signature or authentication of any kind, there appears in the handwriting of decedent a money
bequest to one already named as a legatee with an expression of a desire that he shall be the residuary legatee of
decedent's estate, and such writing is not in continuation of anything written elsewhere in the instrument nor referred to
in any way nor authenticated in any manner, and the signatures of testator and of the subscribing witnesses are on the
third page, probate will be refused on the ground that the instrument was not signed "at the end." Re Faye's Will (1916)
97 Misc 532, 163 NYS 408.
Where the testator, using a printed form consisting of a single sheet folded to make two pages, the printing being
only on one side of each page, continued his will on the back of the first page, but signed the will in the place provided
on the second page, leaving a large empty space following the last line on the back of page one, the instrument is
nevertheless entitled to probate, the only dispositive provision on the back of page one being a logical continuation of
one begun on page one and there are no apparent interlineations or additions. Re Hildreth's Will (1942, Sur) 36 NYS2d
938.
51. --Attached sheets
A will is entitled to probate and was signed by testator "at the end" thereof, as required, where, being written by the
testator himself on a blank form procured from a stationer, he stated that he wished his estate to be settled according to
the provisions of a certain number of pages attached to the will, and, in a blank space preceding his signature, he pinned
the stated number of separate sheets containing the intended disposition of his property. Re Field's Will (1912) 204 NY
448, 97 NE 881.
Where an alleged will was drawn on a printed blank consisting of one sheet folded double, and the part appearing
on pages 2 and 3 is wholly without the body of the instrument and is merely referred to on page 1, which the testatrix
and subscribing witnesses signed at the bottom, and to read the paper it is necessary to skip a part of that page, turn over
to pages 2 and 3, and then turn back to page 1, in order to have the sense connected and the language grammatical and
continuous, probate will be denied on the ground that the instrument was not signed at the end thereof. Re Lowden's
Estate (1919) 106 Misc 707, 175 NYS 591.
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NY CLS EPTL § 3-2.1
Where the testator used a printed will form folded horizontally to make four pages, and after exhausting the space
provided, wrote the words "Continued on Page Three" at the bottom of the top interior page, marked "Page Two,"
thereupon continuing the dispositive provisions of his will in longhand on four unfastened sheets which were found
between the two inside pages, the signature of the testator which appears on the lower interior sheet along with those of
the witnesses is at the end of the will and the instrument is therefore entitled to probate. Re Feid's Will (1944, Sur) 47
NYS2d 426.
V. Signature in Presence of Witnesses
52. In general; sequence of events
Probate of will was properly denied for improper execution where 2 of 3 attesting witnesses had died between
signing of will and petition for probate, and surviving witness testified that only she, decedent, and petitioner were
present at will signing and that decedent did not publish her intention that document be her will. In re Estate of Pirozzi
(1997, 3d Dept) 238 AD2d 833, 657 NYS2d 112.
While the usual and orderly manner of execution of a will is for the testator to sign first and the act to be then
followed by the signing of the witnesses, yet a variation in the order seems not to invalidate the instrument, if the acts
constitute one transaction. Re Jones' Estate (1936) 157 Misc 847, 285 NYS 894.
A codicil was properly executed where it was shown to decedent, then in an oxygen tent, and he was informed of
its substance and that it carried out his instructions previously given; he declared it to be his codicil and requested the
person named as executor to subscribe it as his agent, whereupon the agent and three witnesses signed the will in an
adjoining room, the agent adding his own signature indicating that he was acting as agent, and following such execution
the decedent acknowledged the instrument, at which time the contents of the instrument were repeated to make sure
testator knew what was being done. Re Silverman's Will (1950) 198 Misc 274, 97 NYS2d 490.
53. Necessity that witnesses see testator's signature
Order which granted respondents' cross motion to deny probate of instrument purporting to be codicil of decedent's
will affirmed-purported codicil would devise certain real property, previously devised to respondents, to petitioner and
her heirs-under EPTL 3-2.1 (a), two facts are essential, that testator sign his name, and that witnesses see him sign or
that he acknowledges his signature to them; codicil was not properly executed; there was no testimony from purported
witnesses that decedent signed codicil in their presence or that decedent acknowledged he had signed document; there
was large blank area between typewritten matter at top of codicil and decedent's notary stamp; below this notary stamp
was his signature and below that were two signatures of witnesses; there was no attestation clause on document;
summary relief was properly granted as there were no factual questions raised relating to execution. Matter of Levy,
169 AD2d 923.
A will was not subscribed in the presence of the witnesses or acknowledged by the testator to have been subscribed
in accordance with the provisions of subd. 2, where it appears from the testimony of subscribing witnesses that the
testator did not sign the will in their presence; that the will, which is a holographic one without an attestation clause,
was written on one sheet of paper which was so folded at the time witnesses signed that they could not see the body of
the instrument; and that they did not see the testator's signature on the instrument. Re Crill's Estate (1924) 124 Misc
134, 207 NYS 775, affd 214 AD 849, 211 NYS 908.
A paper presented as the decedent's will must be denied probate on the ground of improper execution under this
section where the proof fails to show that the decedent either had signed the paper at the time witnesses were asked to
affix their signatures thereto or exhibited her signature to said witnesses so that they might see it. Re Weeks' Will
(1930) 137 Misc 52, 244 NYS 192.
Where subscribing witness of will did not see testator or other witness sign the will and testator was in another
room when witness signed, the will was not properly executed. Re Banta's Will (1953) 204 Misc 985, 128 NYS2d 334.
Where the witnesses did not see the decedent sign the will nor know whether she had already signed it and she
never acknowledged that she had signed it, although she said it was her will, the instrument was not duly executed. Re
Estate of Bender (1968) 58 Misc 2d 324, 295 NYS2d 177.
54. Necessity of contemporaneous signing
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NY CLS EPTL § 3-2.1
Evidence held to establish that an instrument presented for probate had not been subscribed by decedent in presence
of two attesting witnesses, or acknowledged as her will to such witnesses, that she had not declared the instrument to be
her last will and testament, and that the instrument had in fact been witnessed after her death at the request of the sole
beneficiary. Re Will of Ward (1961) 9 NY2d 949, 217 NYS2d 104, 176 NE2d 110.
A will subscribed by the testator on July 27, 1935 and concededly not witnessed until the following October will
not be admitted to probate for failure to comply with this section where the testimony of the witnesses as to execution is
so improbable as to offend credulity. Re Gibbons's Will (1939) 256 AD 933, 9 NYS2d 793, affd 283 NY 663, 28 NE2d
397, which has reh den 284 NY 592, 29 NE2d 667.
A paper presented as the decedent's will must be denied probate on the ground of improper execution under this
section where the proof fails to show that the decedent either had signed the paper at the time witnesses were asked to
affix their signatures thereto or exhibited her signature to said witnesses so that they might see it. Re Weeks' Will
(1930) 137 Misc 52, 244 NYS 192.
Where decedent's attorney took will back to his office after the signing thereof by testator and one witness and
obtained attestation of remaining 2 witnesses over telephone, will was improperly executed according to provisions of
EPTL § 3-2.1, subd a (2), (4), and could not be admitted to probate. Re Will of Heaney (1973) 75 Misc 2d 732, 347
NYS2d 922, affd (2d Dept) 44 AD2d 828, 355 NYS2d 569.
Where the testimony of the witnesses established that decedent had not signed the propounded will at the time they
signed the instrument, decedent stating that she would rather sign when she got home, the instrument may not be
probated where there was no evidence as to when and under what circumstances decedent's signature was ultimately
affixed. Re Smith's Will (1946, Sur) 67 NYS2d 801.
55. Effect of recitals in attestation clause
Probate must be denied where the testatrix failed to sign her will in the presence of each subscribing witness or to
acknowledge her signature to each witness, and recitals in the attestation clause are not conclusive. Re Will of Redway
(1934) 265 NY 519, 193 NE 301.
Where the attestation clause is complete the failure of the subscribing witnesses to testify positively to the testator's
subscription to his will in their presence, or to the acknowledgment of the signature to them, may well be referred to
lack of memory and a finding that the will was subscribed by the decedent in the presence of the subscribing witnesses
is justified in view of the provisions of Civil Code, § 2612 (now Surrogate's Court Act, § 142). Re Severance's Will
(1916) 96 Misc 384, 161 NYS 452.
A propounded will will be denied probate though properly executed on its face and containing an attestation clause,
where two of the three attesting witnesses testified that the instrument was not signed in the presence of either of them
nor did testator acknowledge his signature to them, the will was not prepared by an attorney or executed under
professional advice, and the provisions of the will were in conflict with the testator's wishes expressed shortly before the
instrument was executed. Re Nast's Will (1944, Sur) 46 NYS2d 771.
56. Evidence and burden of proof
Where a testator, who drew his own will on a blank form did not sign his name in the space intended for such
signature, but merely wrote his name in a blank space in the attestation clause, and both subscribing witnesses testify
that the signature in the attestation clause was not filled in in their presence, or acknowledged by the testator to them,
the instrument was not subscribed as required. Re Rudolph's Estate (1917) 180 AD 486, 167 NYS 760.
The fact that testator referred to an instrument as his will and that a handwriting expert testified that the signature
was written on the holographic will apparently after the body of the instrument had been written does not justify the
court in holding that the testator signed in the presence of the witnesses. Re Crill's Estate (1924) 124 Misc 134, 207
NYS 775, affd 214 AD 849, 211 NYS 908.
Where there were two witnesses to execution of certain codicils, one being the lawyer who drafted the codicils,
who testified to clear recollection that he and the other witness signed after the testator, the other a housemaid in the
employ of testator, who testified that testator had not signed when she signed as witness, though she had made prior
statements to the contrary, jury findings that the testator signed before the witnesses were contrary to the weight of
evidence and must be set aside. Re Estate of Morgan (1961) 32 Misc 2d 628, 223 NYS2d 537.
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NY CLS EPTL § 3-2.1
VI. Publication, Acknowledgment and Request to Witness
57. In general
Order which granted respondents' cross motion to deny probate of instrument purporting to be codicil of decedent's
will affirmed-purported codicil would devise certain real property, previously devised to respondents, to petitioner and
her heirs-under EPTL 3-2.1 (a), two facts are essential, that testator sign his name, and that witnesses see him sign or
that he acknowledges his signature to them; codicil was not properly executed; there was no testimony from purported
witnesses that decedent signed codicil in their presence or that decedent acknowledged he had signed document; there
was large blank area between typewritten matter at top of codicil and decedent's notary stamp; below this notary stamp
was his signature and below that were two signatures of witnesses; there was no attestation clause on document;
summary relief was properly granted as there were no factual questions raised relating to execution. Matter of Levy,
169 AD2d 923.
In a contested probate proceeding, a decree entered upon a jury verdict denying probate of a certain codicil signed
by the testatrix on the ground of undue execution thereof would be reversed where the jury determined that, though the
testatrix did not "declare" the instrument to her codicil, each of the three subscribing witnesses to the codicil, one of
whom was her attorney, testified that the testatrix read the document, acknowledged it to be her codicil, and signed it,
and that at her request each of them affixed his or her signature to the instrument, which evidence was uncontradicted
by the objectant, since the requirement of an expressed declaration, pursuant to EPTL § 3-2.1(a)(3) need not be
followed literally as long as sufficient information is conveyed to the subscribing witnesses during the execution
ceremony that the testatrix is aware that the instrument she is signing is her codicil. Re Hedges (1984, 2d Dept) 100
App Div 2d 586, 473 NYS2d 529.
Where a testator exhibits a paper drawn and subscribed by him, with the subscription in plain sight, and declares to
witnesses that it is his last will and testament and asks them to sign as witnesses, he has done all that statute requires and
there is a sufficient publication of will and acknowledgment of testator's subscription thereto. Re Bassett's Will (1914)
84 Misc 656, 146 NYS 842.
58. Sequence of events
A declaration of a testator that a certain document is his last will and his request to the subscribing witnesses to act
as such may be made before, during or after testator has subscribed his name, provided they all take place as parts of the
same transaction. Re Haber's Will (1922) 118 Misc 179, 192 NYS 616.
59. When acknowledgment required
An instrument bearing a date in the body thereof and indorsed "will of . . ." with an attestation clause and a paper
entitled "codicile," containing four lines without any date or attestation clause, cannot be admitted to probate in the face
of the testimony of two persons, purporting to be witnesses, that the testatrix neither signed the instrument in their
presence nor acknowledged her signature to them after signing, and that at time they affixed their signatures to the
documents she did not declare it to be her last will and testament as required. Re King's Will (1927) 130 Misc 907, 225
NYS 536.
Where it is clear that testator did not subscribe his will in the presence of one of the attesting witnesses, it is
essential that the signature be acknowledged to the witness, since either subscription or acknowledgment in the presence
of witnesses is mandatory. Re Will of Moeser (1964) 42 Misc 2d 1017, 249 NYS2d 443.
Summary judgment denying probate to a will is properly granted where testator's signature was not acknowledged
to either attesting witness as required by EPTL 3-2.1 (subd [a], par [2]). Testator did not sign his name in the presence
of either attesting witness nor did he ever acknowledge his signature to them. The first attesting witness was not even
told what he was signing and the document was so folded that he could not tell whether testator's signature was on the
document. As a matter of law, no question of fact exists which can cure the substantial, substantive and fatal defect of
due execution. Such a result points up the disastrous results which can occur when a lay person takes it upon himself to
do his own will. Re Estate of Daly (1978) 93 Misc 2d 241, 402 NYS2d 747.
60. --When express acknowledgment not required
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NY CLS EPTL § 3-2.1
Probate of will was improperly denied on the sole ground that the decedent made no express acknowledgment to
the second subscribing witness that the subscription was that of decedent, where the instrument in fact had been
subscribed by the decedent, where she declared the instrument to be her will and where the signature on the will was
clearly visible to this witness. Re Levine's Will (1956, 2d Dept) 1 AD2d 778, 147 NYS2d 653, motion den (2d Dept) 1
AD2d 825, 149 NYS2d 232 and affd 2 NY2d 757, 157 NYS2d 577, 138 NE2d 812.
Where the testator signed in the presence of the subscribing witnesses, an acknowledgment that the signature was
hers is unnecessary. Re Baumann's Will (1914) 85 Misc 656, 148 NYS 1049.
61. --Sufficiency of request
The fact that genuine signatures of subscribing witnesses appear on a will at the proper place, that the will bears an
attestation clause and that signature of the testatrix is established, with other facts surrounding the execution of the will,
tend to prove that the witnesses signed at the request of the testatrix and may clearly establish that fact. Re Katz' Will
(1938) 277 NY 470, 14 NE2d 797.
Evidence that a bookkeeper employed by the son and chief beneficiary read the will and attestation clause and that
testator nodded when one of the witnesses was asked by the bookkeeper to sign, was an insufficient request under the
circumstances, although silence and a simple nod may satisfy if the testator is of undoubted mental alertness. Re
Kenney's Will (1917) 179 AD 258, 166 NYS 478.
Where, upon presentation for probate of two detached sheets of paper written by the testator and subscribed by him
but naming no executor and containing no attestation clause, it appears that no witness signed either of the sheets of
paper; that more than one year and five months thereafter a certificate, stating in effect that the testator was in sound
mind, identified his cousin as the one to whom he had bequeathed his estate as specified in the aforesaid instrument,
was signed by a doctor and a nurse at the hospital where decedent was then a patient, and there is no substantial
evidence that decedent intended to execute a will on the occasion when the certificate was made nor that he asked the
witnesses to the certificate to witness the execution of the papers as his will or that he in any manner indicated to them
that he desired them to act as such witnesses and the nurse who witnessed the certificate had not seen the decedent's
signature, the instrument should not be admitted to probate. Re Cogan (1918) 184 AD 198, 171 NYS 643, affd 226 NY
694, 123 NE 860.
This section does not require that the request to the subscribing witnesses be made in any set form of language.
Meyers v Anwal Realty Corp. (1927) 222 AD 65, 225 NYS 354, affd 248 NY 645, 162 NE 559.
A decree heretofore entered admitting the paper propounded as decedent's will must be vacated and the letters c. t.
a. issued thereunder revoked, where the proof establishes that only one of the two subscribing witnesses to the paper
signed at the decedent's request. Re Bradley's Will (1932) 144 Misc 276, 258 NYS 449.
A compliance with the statute is established by proof that in some manner the testatrix and the witness came to a
mutual understanding that she desired the witnesses to affix their signatures in attestation of the execution of the
instrument. It is not necessary that any word shall have been spoken; signs, gestures, or pantomine, accompanied by a
presentation of the instrument to the witness, are equally effectual. Re Mullenhoff's Will (1950) 199 Misc 83, 105
NYS2d 314, revd on other point 278 AD 963, 105 NYS2d 675.
A request by the testator who was an attorney that his wife witness his will may be spelled out in spite of her
assertion to the effect that she merely signed at her own suggestion made in the spirit of banter in view of the fact that
she had witnessed so many other wills which the testator had drawn for his clients, by the fact that the will provided for
three witnesses and contained the usual attestation clause, that she signed in the testator's presence, and that the testator
retained possession of the will. Re Weil's Will (1944, Sur) 52 NYS2d 375.
62. Sufficiency of acknowledgment
Where testatrix declares instrument to be her will and her signature is clearly visible to witness, there is sufficient
acknowledgment. Re Levine's Will (1956, 2d Dept) 1 AD2d 778, 147 NYS2d 653, motion den (2d Dept) 1 AD2d 825,
149 NYS2d 232 and affd 2 NY2d 757, 157 NYS2d 577, 138 NE2d 812.
A codicil is properly executed where it is shown to decedent, then in an oxygen tent, and he is informed of its
substance and that it carried out his instructions previously given; he declares it to be his codicil and requests the person
named as executor to subscribe it as his agent, whereupon the agent and three witnesses sign the will in an adjoining
Page 29
NY CLS EPTL § 3-2.1
room, the agent adding his own signature indicating that he is acting as agent, and following such execution the
decedent acknowledges the instrument, at which time the contents of the instrument are repeated to make sure he knows
what was being done. Re Silverman's Will (1950) 198 Misc 274, 97 NYS2d 490.
63. --Request that witness act as such
A testator may, in making the declaration and request, adopt the words of another in any way which evidences such
adoption, but in determining whether he did, his mental and physical condition, the character of the testamentary
disposition and the agency of the chief beneficiary must be considered. Re Kenney's Will (1917) 179 AD 258, 166 NYS
478.
Although the last page of a stapled, four-page instrument had been duly executed, the court properly denied to
probate the instrument as the last will and testament of the deceased, where the last page did not contain any
testamentary matter, and, even though the testatrix had requested witness of her signature on the paper, she had not
declared to the witnesses that she intended the document to be her will. Re Estate of Griffin (1981, 3d Dept) 81 App
Div 2d 735, 439 NYS2d 492.
Decedent's request to each of two subscribing witnesses to sign instrument which he declared to be his will and
upon which his signature was visible constituted sufficient acknowledgment. Re Walton's Estate (1954) 206 Misc 908,
135 NYS2d 690.
A testator's request to subscribing witnesses to sign the instrument which he declared to them to be his will and
upon which his signature was clearly visible constituted sufficient acknowledgment under subd. 2 of this section. Re
Estate of Knoepfler (1962) 34 Misc 2d 65, 227 NYS2d 965.
64. --Acknowledgment to only one witness
Where a will has not been signed by the testator in the presence of either witness he must, with his signature to the
will visible, acknowledge the same to each of the witnesses, and an acknowledgment to one of the witnesses is
insufficient. Re Keeffe's Will (1913) 155 AD 575, 141 NYS 5, affd 209 NY 535, 102 NE 1104:.
65. Effect of acknowledgment without subscription
Words written in the body of a will, after the testatrix had signed it, are not entitled to be probated unless she again
subscribes the paper; that she subsequently acknowledged her subscription is insufficient to incorporate the words never
in fact subscribed. Re Foley's Will (1912) 76 Misc 168, 136 NYS 933.
66. Necessity that testator's signature be visible
A declaration by a decedent that the instrument was her last will and testament does not satisfy the requirements of
this section since the signature must be visible and called to the attention of the witnesses when the acknowledgment is
made by testator. Re Redway's Will (1933) 238 AD 653, 265 NYS 848, affd 265 NY 519, 193 NE 301.
An instrument bearing a date in the body thereof and indorsed "will of . . ." with an attestation clause and a paper
entitled "codicile," containing four lines without any date or attestation clause, cannot be admitted to probate in the face
of the testimony of two persons, purporting to be witnesses, that the testatrix neither signed the instrument in their
presence nor acknowledged her signature to them after signing, and that at time they affixed their signatures to the
documents she did not declare it to be her last will and testament as required. Re King's Will (1927) 130 Misc 907, 225
NYS 536.
67. Publication without subscription or acknowledgment
Even though a testator may have signed his will prior to meeting the witnesses and produced it before the witnesses
after he had signed it, still there was sufficient publication where it appears that testator did produce the instrument, did
declare it to be his last will and testament and did request the witnesses to sign it as such. Re Parker's Will (1927) 130
Misc 547, 225 NYS 203.
This section contemplates the subscription of acknowledgment of the will in the presence of the witnesses and the
publication of the instrument as a will as two distinct acts, and both are necessary to its due execution; the courts are not
authorized to make the one act stand for both. Re Dawley's Will (1933) 148 Misc 828, 266 NYS 550.
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NY CLS EPTL § 3-2.1
68. Subscription or acknowledgment without publication
Where an alleged will having no attestation clause, though signed by the alleged testatrix and subscribing witnesses
at her request, was not at any time declared by the testatrix to be her last will and testament, probate must be refused on
the ground that there was no publication as required by subd. 3. Re Shaper's Will (1914) 86 Misc 577, 149 NYS 468.
This section contemplates the subscription or acknowledgment of the will in the presence of the witnesses and the
publication of the instrument as a will as two distinct acts, and both are necessary to its due execution; the courts are not
authorized to make the one act stand for both. Re Dawley's Will (1933) 148 Misc 828, 266 NYS 550.
Inclusion of an attestation clause in a will does not cure want of publication of the instrument as a will as against
testimony that it was not published. Re Will of Schwartz (1960) 22 Misc 2d 392, 197 NYS2d 914.
Certain testamentary instruments may not be probated for lack of publication where the testatrix on the occasion of
their execution, did not characterize the respective instruments as codicils or wills, nor refer to them as such in the
presence of the other witnesses, and in fact the witnesses had no knowledge of the character of the documents. Re
Fiske's Will (1947, Sur) 69 NYS2d 655.
69. Sufficiency of publication
Where proof showed decedent had told witnesses that he was going away and wanted instructions carried out "if
anything happens" and that instrument was "something he wanted taken care of," a will would be denied probate for
lack of publication where witnesses said that decedent did not declare paper to be his will and that neither so understood
from his words or conduct. Re Pulvermacher's Will (1953) 305 NY 378, 113 NE2d 525, amd 305 NY 923, 114 NE2d
474.
This section requires definite formalities, and one of them is publication. Publication, in turn, demands not only that
the testator have knowledge of the character of the instrument but, equally important, that he share that knowledge with
his witnesses. While "no particular form of words" is necessary, it has been held that the minimum statutory
prescription is some kind of communication that the instrument that they are being asked to sign is testamentary in
character. It must appear that as between the testator and the witnesses, there is some meeting of the minds upon the
understanding that the instrument will be testator's will. Re Pulvermacher's Will (1953) 305 NY 378, 113 NE2d 525,
amd 305 NY 923, 114 NE2d 474.
A testator may, in making the declaration and request, adopt the words of another in any way which evidences such
adoption, but in determining whether he did, his mental and physical condition, the character of the testamentary
disposition and the agency of the chief beneficiary must be considered. Re Kenney's Will (1917) 179 AD 258, 166 NYS
478.
Evidence held to establish that an instrument presented for probate had not been subscribed by decedent in presence
of the two attesting witnesses, or acknowledged as her will to such witnesses, that she had not declared the instrument to
be her last will and testament, and that the instrument had in fact been witnessed after her death at the request of the sole
beneficiary. Re Ward's Will (1960, 1st Dept) 10 AD2d 309, 199 NYS2d 603, affd 9 NY2d 949, 217 NYS2d 104, 176
NE2d 110.
Where at time of execution of second codicil the testatrix appeared "coma-like" and made no statements and at time
of execution of first codicil one attesting witness was not aware that document she was witnessing was a "will" or
codicil, both codicils were invalid for lack of publication. Re Will of Sheehan (1976, 4th Dept) 51 AD2d 645, 378
NYS2d 141.
A petition to probate a will would be denied, where the petitioner failed to produce evidence that the testatrix
intended the offered instrument to be her will as required by EPTL § 3-2.1. Re Estate of Collins (1983, 4th Dept) 91
App Div 2d 1167, 459 NYS2d 132.
It is sufficient if the testator in some manner communicates to the witnesses the fact that the paper which he is
signing and which they are requested to witness is understood and intended by him to be his will. Perham v Cottle
(1916) 98 Misc 48, 162 NYS 21, affd 178 AD 949, 165 NYS 1106.
An instrument bearing a date in the body thereof and indorsed "will of . . ." with an attestation clause and a paper
entitled "codicle," containing four lines without any date or attestation clause, cannot be admitted to probate in the face
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of the testimony of two persons, purporting to be witnesses, that the testatrix neither signed the instrument in their
presence nor acknowledged her signature to them after signing, and that at time they affixed their signatures to the
documents she did not declare it to be her last will and testament as required. Re King's Will (1927) 130 Misc 907, 225
NYS 536.
The attestation clause and the proof of the signatures of decedent and 3 witnesses, coupled with the testimony of 2
of the 3 witnesses that they were aware of the fact that the instrument which they were witnessing was a will, was
sufficient to warrant admitting the propounded instrument to probate despite the fact that all 3 witnesses testified that
decedent failed to declare the propounded instrument to be his last will and testament, and one of the witnesses stated
she did not know what the nature of the instrument was. Will of Santangelo (1958) 10 Misc 2d 1002, 170 NYS2d 175.
Where the only evidence as to publication of a will was a statement of one of the witnesses, who, with two other
employees of the testator, was called into the latter's office, that "they joked around," and, although something was said
about a will, "I didn't know whether they were serious or joking or what I signed," it was insufficient to establish the
requisite solemnity and the will was rejected. Re Will of Schwartz (1960) 22 Misc 2d 392, 197 NYS2d 914.
Alleged codicil was invalid for lack of publication where, inter alia, no mention was made during course of
execution of codicil as to whether codicil was being signed by testatrix, instrument was folded in such manner as to
make reading of attestation clause by witnesses highly unlikely and almost impossible, codicil was not drawn by an
attorney, attorney was not in attendance at execution, beneficiary of the bequest provided in the codicil was dominant
factor in its preparation and execution and spoke for and in behalf of testatrix at crucial moments and testatrix was not
aware of what was going on about her. Re Estate of Sheehan (1975) 80 Misc 2d 793, 364 NYS2d 718, affd (4th Dept)
51 AD2d 645, 378 NYS2d 141.
The requirement that a testator at some time during the execution ceremony expressly declare to each of the
subscribing witnesses that the instrument which he has signed is his will (EPTL 3-2.1, subd [a], par [3]), need not be
followed literally as long as necessary information is conveyed to the subscribing witnesses so that they are informed
during the execution ceremony in the presence of testator that the document in question is testator's will. A request to
sign a will made by the attorney supervising the will within the hearing of the testator with his silent assent is sufficient
publication. Re Estate of Eckert (1978) 93 Misc 2d 677, 403 NYS2d 633.
Where testimony of attesting witnesses show that they were merely called upon to witness the signature of the
decedent, and that they were not told by him, or anyone else, that the instrument was his last will and testament, proof
of execution in accordance with the statute was insufficient to sustain admission of the instrument to probate as a will.
Re Will of Nevins (1962, Sur) 231 NYS2d 586.
70. --Time of publication
Where, as to one of the subscribing witnesses to a will drawn upon a printed blank, there was a compliance with the
statutory requirements, and thereafter the testator presented the paper with his signature upon it to his brother, the other
witness, and asked him to witness his signature, which he did, but there was no declaration then that the instrument was
a will, nor any circumstance from which such a declaration could be implied, and where, after remaining together about
an hour, they went to luncheon together and at the table the testator told his brother that the paper was his will, to which
the brother made no reply and did not again see the paper, the instrument was properly executed. Re Baldwin's Will
(1910) 67 Misc 329, 124 NYS 612, affd 142 AD 904, 126 NYS 1121, which is affd 202 NY 548, 95 NE 1122.
A will offered for probate was duly published where it appeared that testator spoke to the attesting witnesses about
the will some time before they were called on to witness it and requested them to sign as witnesses at some time when
the three of them were together alone and that at time the alleged will was signed by the witnesses the testator told them
in effect that the paper was his will. Re Crill's Estate (1924) 124 Misc 134, 207 NYS 775, affd 214 AD 849, 211 NYS
908.
71. --Reading of will
The requirement of publication is satisfied where testatrix handed her signed will which was contained on a single
sheet of paper to the two subscribing witnesses who read it and observed her signature thereon. Re Dodds' Will (1944)
268 AD 811, 48 NYS2d 622, affd 294 NY 706, 61 NE2d 448.
Where a script was prepared and read twice by the scrivener to the testatrix in the presence and hearing of all
participants, and testatrix indicated her approval of its contents and asked where she should sign, there was sufficient
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publication. Re Mullenhoff's Will (1950) 199 Misc 83, 105 NYS2d 314, revd on other point 278 AD 963, 105 NYS2d
675.
There is adequate publication to satisfy this section where the testator who had just been admitted to a hospital for
the purpose of undergoing an emergency operation, though failing to declare an instrument to be his will or to refer to it
as such in the presence of the subscribing witnesses, read the will to these witnesses who were thereby adequately
acquainted with its character Re Clarke's Estate (1944, Sur) 51 NYS2d 291.
72. Where testator acts through interpreter
Due execution of a will is not shown where the testator was a German unable to read English, was sick in a hospital
at the time of the execution; the will was in English and was brought to the hospital by proponent who also secured
witnesses, and the subscribing witnesses agree that after will was signed the testator never requested them to sign nor
did he publish or announce that the document was his will. Re Rapp's Will (1920) 194 AD 88, 184 NYS 794.
The will of a woman, unable to speak English but who could speak and read Polish, was duly and properly
published as required by law, and the request to a subscribing witness was sufficient, where a subscribing witness who
understood both Polish and English interpreted to the other subscribing witness who did not understand Polish what the
testatrix had said. Re Dybalski's Will (1922) 199 AD 677, 191 NYS 809, affd 234 NY 510, 138 NE 426.
Where testator read no English and understood it only if spoken slowly and his attorney carefully explained the
terms of the will to be drafted, and later, although the attorney was not present, witnesses testified that the testator was
read the will by his son in English and again in a foreign language, and the testator indicated his assent to the will's
terms, and further his desire that the witnesses witness its execution, the preponderance of the evidence supported the
Surrogate's admission of the will to probate. Re Will of Watson (1971, 3d Dept) 37 AD2d 897, 325 NYS2d 347 (1971).
Where a will was written in English for a testatrix who could speak Italian but not English and could neither read
nor write either language and was read to the testatrix and translated into Italian for her by one of two subscribing
witnesses who spoke both languages, and the testatrix said that it was her will and she wanted them and the attorney to
sign, and after seeing her sign they signed in her presence and in the presence of each other, the will was properly
executed. Re Liquori's Will (1955, Sur) 142 NYS2d 220.
73. Execution of copies
Propounded instrument was denied probate where decedent did not sign carbon-original in presence of witnesses,
did not acknowledge his signature, and at the time the witnesses affixed their signatures he did not declare it to be his
last will and testament. Re Will of Malley (1957) 6 Misc 2d 31, 159 NYS2d 1011.
VII. Subscription by Witnesses
74. In general
A will must be witnessed by two persons. Re Will of Poppe (1969) 60 Misc 2d 418, 302 NYS2d 708.
Even though will had been signed by only one attesting witness, will was admitted to probate upon proof that one
page printed will form had been fully executed by testator and attested by one of two witnesses to event of execution,
which was supported by a contemporaneous document consisting of wife's will, and sworn testimony of both
subscribing witnesses. Re Will of Kiefer (1974) 78 Misc 2d 262, 356 NYS2d 520.
The presumption of intentional revocation of a will where the will is last known to be in the possession of the
decedent and is not found at his death, may be rebutted by circumstantial evidence and may be overcome where the
proponent of the will cannot produce the executed ribbon copy but produces a fully executed carbon copy which was in
the decedent's possession at the time of his death; however, since decedent's will could not be located and the witnesses,
whose names are printed on the carbon copy of the will, did not sign the copy, the instrument offered for probate was
not executed with the necessary formalities for the execution and attestation of wills (EPTL 3-2.1) and the presumption
of revocation is therefore operative; since the words on the back of the carbon copy explicitly state that the original will
is located in a safe deposit box, the decedent did not believe that the carbon copy was her original will nor did she
intend it to be accepted as such; a 1968 letter from decedent which mentioned her will does not prove nonrevocation
since written declarations of a decedent which are not received as part of the res gestae are inadmissible on the question
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of revocation, nor does the letter constitute a republication of the prior will. Estate of Engelken (1980) 103 Misc 2d
772, 426 NYS2d 894.
Printing of names by attesting witnesses at end of attestation clause of will constitutes signatures of witnesses so as
to comply with execution requirements where names are printed with intent to execute or authenticate attestation clause.
Re Estate of Katz (1985) 129 Misc 2d 820, 494 NYS2d 629.
The printing of the three attesting witnesses' names in the space provided following the attestation clause, combined
with their signing of the "self-proving affidavit" simultaneously with the execution of the will, complies with the
statutory requirements of EPTL 3-2.1. The self-proving affidavit was as much as part of the will as was the attestation
clause, having been attached with the will under the same will back. Accordingly, the will is admitted to probate.
Matter of Zuracino, 148 Misc 2d 707.
75. What constitutes end of will
Where the signature of an alleged subscribing witness is at the bottom of the page of the last material provision of
the instrument, it is to be construed as being "at the end" of the instrument within the meaning of subd. 4 of this section,
notwithstanding it precedes a concluding sentence as to date of execution and the signature of the testator. Re Will of
Dupin (1962) 36 Misc 2d 309, 232 NYS2d 381.
Where the objectants to the probate of a purported will contended that the witnesses did not sign "at the end"
thereof in accordance with the requirements of the statute, where the evidence indicated that if the will was read as it
naturally would be, that is from top to bottom and from left to right, and that, upon reaching the bottom, the sheet was
turned sideways so as to read the witnesses' signatures, in normal fashion from left to right, such signatures were not
followed by any provision of the purported will and were "at the end" within the meaning of the statute. Re Will of
Mac Monnies (1968) 58 Misc 2d 836, 296 NYS2d 379.
The fact that the testatrix's signature appeared below the witnesses' signatures on her will would not be fatal to the
probate of the will where, though it is preferable that signatures of witnesses be subscribed either beneath or next to the
signature being witnessed, all of the signatures on the subject will followed the dispositive provisions of the will as
required by EPTL § 3-2.1(a); additionally, the witnesses' failure to utilize the attestation clause on the printed will
form would not be fatal to the probate of the will, since an attestation clause is not a statutory prerequisite to a valid
will. Re Estate of Bochner (1983) 119 Misc 2d 937, 464 NYS2d 958.
76. --Form wills
An instrument consisting of a one-page printed form of will on which the signatures of the witnesses appeared in
the middle of the page in a blank space, below which a clause providing for naming of an executor was filled in,
followed by the signature of the testator, did not meet the requirements of subd. 4 of this section because the signatures
of the witnesses were not at the end of the will. Re Stone's Will (1961) 31 Misc 2d 813, 219 NYS2d 813.
A will written on a printed form may not be admitted to probate where the witnesses thereto signed the printed
attestation clause which was on the second page of the form, and additional dispositive provisions and the testator's
signature appeared on the third page. Re Murphy's Estate (1944, Sur) 46 NYS2d 677.
77. Interested witnesses
Inasmuch as specific reference is made to term "attesting witness" within statute providing that any disposition or
appointment made to an attesting witness is void unless there are, at time of execution and attestation, at least two other
attesting witnesses to will who receive no beneficial disposition or appointment thereunder, and inasmuch as preceding
statute specifically states that a person who signs testator's name shall not be counted as one of necessary attesting
witnesses, it is to be logically concluded that a person acting as a witness to mark or subscription of a deceased is acting
in a capacity other than a subscribing witness, there otherwise being two subscribing witnesses. Re Estate of Galvin
(1974) 78 Misc 2d 22, 355 NYS2d 751.
78. Relation to attestation clause
The fact that the signatures of alleged witnesses appeared upon a document before the attestation clause, whereas
testator's signature appeared after it, was not fatal to its probate, where the attestation clause was not dispositive in
character. Re Haber's Will (1922) 118 Misc 179, 192 NYS 616.
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Attestation clause constituting third page of will, in affidavit form, signed by three witnesses at end thereof and
having no dispositive or essential provisions following signature of testatrix or of witnesses, although couched in past
tense, was valid. Re Will of Leitstein (1965) 46 Misc 2d 656, 260 NYS2d 406.
Printing 3 attesting witnesses' names in space provided following attestation clause, combined with their signing of
self-proving affidavit which was executed simultaneously with and attached to will under same backing, complied with
requirements of CLS EPTL § 3-2.1 and entitled will to be admitted to probate. Re Estate of Zuracino (1990) 148
Misc 2d 707, 561 NYS2d 397.
79. Time of signing
Surrogate erred by invalidating will on ground that there was insufficient proof to show when testatrix signed will
and, consequently, no proof that she signed it in presence of witnesses, or that witnesses signed in presence of each
other, since there was sufficient proof demonstrating compliance with CLS EPTL § 3-2.1 to sustain petition for
probate where testimony established that testatrix signed document, declared it to be her will, acknowledged her
signature to witnesses as having been affixed by her, and asked each witness to sign; there is no requirement that
testatrix sign in presence of witnesses, or that will or testatrix's signature be dated, and while there was no conclusive
proof that both witnesses signed within 30-day period set forth in § 3-2.1(a)(4), it was presumed that such requirement
was satisfied. Re Estate of Dujenski (1989, 4th Dept) 147 App Div 2d 958, 537 NYS2d 402.
An examination of the language of this section reveals no time limit within which a will must be witnessed. Re
Will of Willenborg (1958) 16 Misc 2d 419, 181 NYS2d 146.
This section makes no requirement that attestation of a will by subscribing witnesses be simultaneous with its
execution by the testator, and signing by all three witnesses within three months after it was signed by testator is within
a reasonable time. Re Estate of Knoepfler (1962) 34 Misc 2d 65, 227 NYS2d 965.
Requirement for completion of will ceremony "within one thirty day period" under CLS EPTL § 3-2.1
commences on date of first acknowledgment where testator has signed will prior to any acknowledgment of his
signature; thus, statute was satisfied where testatrix signed will sometime between March 31, 1987 and latter part of
May 1987, and she thereafter acknowledged her signatures to at least 2 witnesses in May 1987 who then affixed their
signatures. Re Estate of Rimerman (1988) 139 Misc 2d 506, 527 NYS2d 359.
Will was admitted to probate where second witness refused to sign at time of initial execution, but signed at time of
second signing by testatrix and such witness intended to and did sign as an attesting witness to the instrument and to
both of decedent's signatures. Re Mahoney's Will (1956, Sur) 155 NYS2d 650.
80. Signature in each other's presence
This section does not require that the subscribing witnesses sign in the presence of each other. Hence, the failure of
both or all of the subscribing witnesses to sign in the presence of each other will not require a denial of probate, at least
where the signatures of such witnesses are affixed at about the same time or are so related in time as to be a succession
of acts. Re Chadwick's Will (1957) 10 Misc 2d 208, 174 NYS2d 762.
81. Signing by or as notary
Substantial compliance with § 21, entitling an instrument in the testator's handwriting to probate, is shown where
the evidence showed that testator, stating that the instrument was his will, requested a woman employed in his office,
who was also a notary, to witness the instrument and to have another woman employee also witness it; that the signature
of the second woman appeared opposite the word "witness," which the testator had written in the margin; that the
second's signature was one-half inch below; and that, although there appeared above the latter's signature, in her own
handwriting, the words "sworn to before me this tenth day of April 1948. Elsie M. Coons, Notary Public," and below
this a rubber stamp showing her commission as a notary public, the testimony showed that the jurat was written and the
stamp applied after the signature had been affixed and that witness had presented the instrument to the other witness and
obtained her signature. Re Douglas' Will (1948) 193 Misc 623, 83 NYS2d 641.
Although this section requires each of the two attesting witnesses to sign his name "as a witness", the designation of
an individual whose signature appeared on a propounded instrument as a "notary" did not of itself determine the
capacity in which he signed. Thus, where the evidence established that the person signed the will in the capacity of a a
subscribing witness, the will was admitted to probate. Re Ryan's Will (1958) 12 Misc 2d 192, 174 NYS2d 607.
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NY CLS EPTL § 3-2.1
An attesting witness must sign as such and one signing in the character of a notary public purporting to take an oath
is not such a witness. Re Hammer's Estate (1946, Sur) 72 NYS2d 636, affd 272 AD 822, 72 NYS2d 410.
82. Signing by agent
A will was properly executed, although the name of one of the witnesses was signed by the other witness, for it was
proven that the name of that witness was affixed to the will by her husband in her presence and at her request. Re
Humiston's Estate (1926) 128 Misc 71, 218 NYS 234.
83. Initials
Initials of attesting witnesses opposite the testimonium clause were sufficient to serve as their signatures, entitling
the will to probate, notwithstanding their full signatures, following the attestation clause, had been torn off. Mack's
Will (1963) 39 Misc 2d 889, 242 NYS2d 269, affd (3d Dept) 21 AD2d 205, 250 NYS2d 177.
84. Requirement of prior law as to address of witnesses
The three year statute of limitations against the right to enforce a penalty imposed by this section upon the witness
to a will who omits to write his address opposite his signature, does not begin to run until the death of the testator.
Dodge v Cornelius (1901) 168 NY 242, 61 NE 244.
The requirement of this section that a witness to a will shall write opposite his name his place of residence, is
sufficiently complied with where he stamped opposite his name with a seal the words "Notary Public, New York
County." Bossie v Edelson (1912) 76 Misc 234, 134 NYS 615.
VIII. Incorporation by Reference
85. In general
The doctrine of incorporation by reference does not prevail in New York. Re Angle's Will (1933) 147 Misc 445,
264 NYS 29. See also Re Bremer's Estate (1935) 156 Misc 160, 281 NYS 264, adhered to 157 Misc 221, 283 NYS 159.
An unattested paper, testamentary in nature, cannot be incorporated by reference into a will even though referred to
by the will, and consequently where the will directs the disposition of property in a manner to be determined by some
memorandum or other instrument, such direction cannot be given effect as a valid testamentary disposition unless the
paper referred to has been executed and attested in the manner required by this section. Re Le Collen's Will (1947) 190
Misc 272, 72 NYS2d 467.
Statutory rules governing execution of wills, as well as judicial pronouncements concerning incorporation into wills
of extraneous writings, are designed to eliminate the possibility of fraud or mistake; their beneficial purpose, however,
should not be subverted by raising form above substance. Re Estate of Powell (1977) 90 Misc 2d 635, 395 NYS2d 334.
An independent instrument purporting to dispose of any portion of a decedent's estate of to contravene provisions
of a will, may not be incorporated in the will by reference. Re Whyte's Will (1953, Sur) 123 NYS2d 846, affd 283 AD
947, 130 NYS2d 237, app den 283 AD 1079, 131 NYS2d 902.
86. Effect on validity of principal will
A will executed in accordance with formalities prescribed by this section by a testator established to have been of
sound mind and free from restraint at the time the will was executed, may be admitted to probate as the last will and
testament of the deceased even though the instrument refers to an extraneous paper writing to which probate is denied.
Re Eldridge's Will (1946, Sur) 64 NYS2d 234.
87. Particular instances where incorporation not allowed
Where a testatrix, by one paragraph of her will, specifically left all property absolutely to a designated friend, but
this was followed by a statement that he should hold and receive the property in accordance with a letter of instructions,
and the letter of instructions was written nearly four years after execution of the will and employed merely precatory
language as to testatrix's wishes concerning what he should do with the property, the absolute gift could not be cut down
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in such manner and should not be considered as limited or conditioned upon performance of the stated wishes of the
testatrix. Re Warren's Estate (1962) 11 NY2d 463, 230 NYS2d 711, 184 NE2d 304.
The fact that a testator before his death placed certain unregistered bonds in an envelope, across the face of which
he wrote, "The property of Miss Lizzie Beck, 842 Forest Avenue, N. Y.," and placed the envelope in his safe deposit
box to which he alone had access, does not establish a gift of the bonds to the person whose name appears on the
envelope. The courts will not consummate the attempted transfer by constructing a trust, for to do so would defeat the
statute of wills. Beck v Staudt (1912) 149 AD 35, 133 NYS 529, affd 208 NY 566, 101 NE 1095.
An attempt by the testator to incorporate by reference a list containing a substantial portion of his assets which were
to be disposed of in accordance with instructions contained in the will and a second list of "faithful friends and
employees" who were to be the beneficiaries under a certain trust, is invalid where such lists are not executed with the
formalities required by this section. Re Collier's Estate (1943, Sur) 45 NYS2d 773.
Where a testatrix in a duly attested will directed that certain property be distributed by her executors "in accordance
with written instructions I have left with them", an unattested writing antedating the will and purportedly the
instructions referred to, was not entitled to probate. Re Eldridge's Will (1946, Sur) 64 NYS2d 234.
88. Instrument as extrinsic evidence
An extraneous paper may properly be resorted and referred to in a will under this section for the limited purpose of
identifying the thing intended to be given, even though not executed in accordance with the formalities prescribed by
this section. Re Le Collen's Will (1947) 190 Misc 272, 72 NYS2d 467.
Whether the extrinsic memorandum referred to in a will is a mere identification of the thing given or is
testamentary in its character is resolved by determining whether the will is complete without additions from the
extrinsic unattested memorandum so that the unattested paper could be used as evidence to identify the property
intended to be given, even if no reference had been made thereto in the will. Re Le Collen's Will (1947) 190 Misc 272,
72 NYS2d 467.
Surrogate's Court dismissed objection to probate of will duly executed in accordance with CLS EPTL § 3-2.1,
where alleged mistake imputed from affidavit signed by decedent at same time as will was not evident on face of will.
In re Estate of Patrick (2001, Sur) 188 Misc 2d 295, 728 NYS2d 354.
89. When incorporation allowed
The doctrine of incorporation by reference may be applied when an authentic extrinsic document such as a trust
agreement is involved. Re Bremer's Estate (1935) 156 Misc 160, 281 NYS 264, adhered to 157 Misc 221, 283 NYS 159.
Where writing is clearly identified by specific reference and circumstances are present which exclude any
reasonable possibility of chicanery or mistake, it would thwart intention of testator to deny probate of instrument by
carrying rules governing execution of wills to a "drily logical extreme." Re Estate of Powell (1977) 90 Misc 2d 635, 395
NYS2d 334.
While the law has been uniformly established that documents or instruments which have not been executed in
accordance with the requirements of this section cannot be incorporated in a will by reference, a recognized exception to
its application exists in the case of non-testamentary instruments which were in existence at the date when the will was
executed, the instrument was clearly identified and was of the variety which excluded the possibility of alteration,
chicanery, fraud or mistake. Re Snyder's Will (1953, Sur) 125 NYS2d 459, app dismd (AD) 134 NYS2d 174.
90. --Particular instances
Where a will directs that the contents of five envelopes containing "securities of various kind" be given to five
named persons, whose names also appeared on the envelopes, which were in a safe deposit box, and six envelopes were
so found, four of which bore the names of persons designated in the will, the contents of these four envelopes are
validly bequeathed to the named legatees, notwithstanding that the testatrix or another having access to the vaults might
have in effect modified testatrix' will by changing the contents of the envelope without compliance with this section.
Re Le Collen's Will (1947) 190 Misc 272, 72 NYS2d 467.
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NY CLS EPTL § 3-2.1
An unsigned, unattested page containing specific dispositions of jewelry and furs which was securely fastened to a
will after the page containing the signature and testatrix and subscribing witnesses was entitled to probate, where the
unsigned page was referred to in the will and the attestation clause, and the testimony of the surviving subscribing
witness was to the effect that the attestation clause was read aloud and the unsigned paper securely fastened at the time
of the execution of the will. Re Will of Hall (1969) 59 Misc 2d 881, 300 NYS2d 813.
A testator made a valid and an effective disposition of property when he bequeathed in a codicil his residuary estate
to trustee named in a separate trust instrument which he incorporated in his will with an express provision that he did
not intend to incorporate any future amendments which might be made to the trust instrument. Re Snyder's Will (1953,
Sur) 125 NYS2d 459, app dismd (AD) 134 NYS2d 174.
IX. Integration
91. In general; sufficient integration
Where a will was drafted on four pages and the testator signed each of the three pages and on the fourth page
appear the names of two witnesses, and the pages are unfastened except for pad glue, in the absence of evidence of
insertions or additions, there is sufficient integration. Re Redden's Will (1945) 185 Misc 382, 56 NYS2d 751, affd 271
AD 1060, 70 NYS2d 134.
Where a will propounded for probate contained pen and ink deletions and additions whereby the names of the two
executors were crossed out and two other names substituted therefor with a marginal notation made by the decedent at
that point in the will reading "Change made Jan. 12, 1959" followed by the decedent's signature and those of three
witnesses two of whom testified that the alteration was made subsequently to the execution of the will and that it was
the decedent's intention to alter it, it was held that such alteration was made in compliance with the provisions of the
above statute. Re Will of Carner (1965) 46 Misc 2d 319, 258 NYS2d 979.
Where, despite uncertainty of subscribing witnesses as to existence of fourth page, physical characteristics of
instrument, along with specific reference contained in will to page in question led to inescapable conclusion that page
was attached to instrument at time of its execution and was intended to be integral part thereof, fourth page, which
contained same date as will and was signed by testatrix but was not witnessed, would be deemed to have been
constructively inserted before subscription page and thus instrument including fourth page would be admitted to
probate. Re Estate of Powell (1977) 90 Misc 2d 635, 395 NYS2d 334.
A carbon copy of a will could be admitted to probate where it was signed by the decedent and attested by witnesses
but by inadvertence the ribbon copy although signed was not attested. Re Epstein's Will (1954, Sur) 136 NYS2d 884.
Where a testator interlined two words in his will and initialed them in the presence of the subscribing witnesses
prior to executing the will, such words constituted part of the will. Re Schreiner's Will (1954, Sur) 137 NYS2d 217.
92. --Insufficient integration
Where three papers in the decedent's handwriting which were found in an envelope shortly after his death are
submitted for probate, and it appears that two witnesses and the decedent signed Exhibit "1" which is a blank form of
will with some spaces filled in, the other two papers cannot be included as part of the will without proof that they were
physically present when Exhibit "1" was signed at the end by the decedent and when she declared it to be her last will,
but Exhibit "1" is sufficient to revoke all former wills of decedent, under § 34 of this chapter. Re Stege's Estate
(1937) 161 Misc 667, 293 NYS 856.
Where a will was altered by the testator after its due publication and execution by crossing out the name of one of
the designated co-executors and inserting the name of a different individual in her own handwriting, a later codicil
containing no indication that it was intended to re-execute and reaffirm the original will as altered would not have such
effect, but would merely reaffirm the will as originally drawn and witnessed. Re Estate of Robbes (1960) 29 Misc 2d
358, 211 NYS2d 830.
Where two yellow pages were attached to a will sometime after execution, they did not constitute any part of
decedent's will. Re O'Reilly's Will (1951, Sur) 109 NYS2d 437.
X. Testimony of Witnesses
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93. In general; liberal construction
Probate of a will should not be refused because the testator chanced to select forgetful or untruthful witnesses, and
hence, if the circumstances surrounding the execution of an instrument show that it was duly executed as a will, it may
be admitted to probate against testimony of all subscribing witness, or upon the testimony of one witness contrary to
that of the other. Re Morley's Will (1910) 140 AD 823, 125 NYS 886.
Testimony of attesting witnesses did not conclusively establish falsity of statements of attesting clause where they
testified that they were present at will execution ceremony and that they signed attestation clause; although they were
unable to recall details of brief ceremony which had occurred some 10 years earlier, such inability was not same as
testifying that formalities described in attesting clause did not occur. In re Estate of Ruso (1995, 3d Dept) 212 AD2d
846, 622 NYS2d 137.
While the testimony of an attorney supervising the execution of a will is accorded great weight and the courts have
resorted to practical solutions where witnesses have proved hostile or forgetful in order to avoid defeat of the will, no
such liberal rule will be applied as to the proof of execution of a subsequent will revoking a prior will which in turn was
revoked so that if the later instrument were deemed to have veen properly executed the testator would have died
intestate. Re Andrew's Will (1949) 195 Misc 421, 88 NYS2d 32.
Where proponents established through two attesting witnesses that the propounded instrument was duly executed in
accordance with this section and that the decedent was competent and free from restraint at the time the will was
executed and the contestant offered no proof to the contrary but relied solely on his cross-examination of proponents'
witnesses, the will was entitled to probate. Re Sigl's Will (1960) 22 Misc 2d 977, 196 NYS2d 911, affd (2d Dept) 11
AD2d 1049, 208 NYS2d 438.
Summary judgment denying probate of a purported will was granted where one of the witnesses to the alleged will
stated that at the time she signed her name the testatrix had not yet signed it and had stated that "she wasn't finished
writing it," and the other witness testified that she did not sign in the presence of the first witness, did not see the first
witness sign, the testatrix did not declare the instrument to be her will and that witness did not think the instrument was
a will when she signed it: Re Will of Stiebing (1960, Sur) 206 NYS2d 836.
94. Conflicting testimony; different witnesses
In proceeding for probate of will wherein decedent left his entire estate to his second wife and effectively
disinherited his children from both marriages, summary judgment was inappropriate where one subscribing witness
testified that decedent satisfied all pertinent requirements of statute of wills (CLS EPTL § 3-2.1(a)(2), (3) and (4)), but
other subscribing witness testified that decedent did not indicate that writing was his will. In re Jacinto (1991, 2d
Dept) 172 AD2d 664, 568 NYS2d 459.
Will was properly executed, despite discrepancy between testimony of decedent's attorney and attorney's secretary
as to whether decedent read her will, where (1) both testified that decedent, in their presence, asked them to witness her
execution of will and then signed it in their presence, and (2) regardless of when and why staples were removed from
will, which was matter of pure speculation, attorney testified that will remained in his office after its execution until its
offer for probate and that will at issue was will executed by decedent in his presence. In re Estate of Sweetland (2000,
3d Dept) 273 AD2d 739, 710 NYS2d 668.
Where one subscribing witness testifies to the due and proper execution of the will, and a second subscribing
witness denies the exeistence of every fact necessary to establish the will, the will "may necessarily be established upon
proof of the handwriting of the testator, and of the subscribing witnesses, and also of such other circumstances as would
be sufficient to prove the will upon trial of the action." Re Estate of Bright (1959) 20 Misc 2d 789, 189 NYS2d 234, affd
(1st Dept) 12 AD2d 745, 210 NYS2d 754, app den (1st Dept) 13 AD2d 629, 215 NYS2d 463.
Testimony of a subscribing witness to a will to the effect that this section was not complied with which was
contradicted by the testimony of the other witness as well as by other independent evidence, must be disregarded as
unbelievable where it appears that the witness was hostile because no provision was made for him in the will. Re
Schik's Will (1945, Sur) 53 NYS2d 669.
95. Contradictory statement; same witness
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Though one of the witnesses to a will, an elderly woman whose memory was not clear, testified that the instrument
was not identified to her as a will, and the second witness, whose testimony contained contradictions, testified the will
was not subscribed by the testator at the time of her attestation, the will which contained an attestation clause, was
entitled to probate where the circumstances surrounding its execution indicated probable compliance with this section.
Re Thompson's Will (1947) 189 Misc 873, 68 NYS2d 123, affd 274 AD 850, 81 NYS2d 923.
In the probate of a lost or destroyed will, testimony of the attorney preparing the document that his wife "must have
been" the other witness to the will, after prior testimony by him that it might have been a neighbor, in addition to the
testimony of his wife that she signed some paper which she assumed was a will, does not sufficiently establish that the
wife was the second witness, and accordingly, in view of § § 141, 142 of the (former) Surrogate's Court Act, the will
could not be probated. Re Andrew's Will (1949) 195 Misc 421, 88 NYS2d 32.
96. Forgetful witness
Probate of a will should not be refused because the testator chanced to select forgetful or untruthful witnesses, and
hence, if the circumstances surrounding the execution of an instrument show that it was duly executed as a will, it may
be admitted to probate against testimony of all subscribing witness, or upon the testimony of one witness contrary to
that of the other. Re Morley's Will (1910) 140 AD 823, 125 NYS 886.
Where the testimony of two of three witnesses to a will is precise and sufficient to prove that the execution of the
paper propounded conformed with all the requirements of the statute, no presumption against the sufficiency of the
execution arises from the fact that the third witness has forgotten nearly all the essentials to a due execution. Re
McCabe's Will (1911) 75 Misc 35, 134 NYS 682.
Evidence offered by the proponent of the will establishes that it was executed in compliance with the requirements
of the statute, notwithstanding one of the subscribing witnesses could not remember whether or not all of the
requirements of the statute were fulfilled. Re Johnson's Will (1927) 130 Misc 514, 223 NYS 843.
Testimony by a witness whose memory was hazy that the document was not signed in her presence or the signature
acknowledged to her will not prevent the probate of a will where other evidence indicates that the decedent was a very
clever woman who was not forgetful, that she had extensive notes of instructions given to her by a lawyer respecting the
proper execution of a will, and that an eminent authority on questioned documents indicated that the signatures of the
decedent and of the two witnesses and the date were all written by the same pen. Re Cardwell's Will (1941) 176 Misc
1059, 29 NYS2d 873.
Though one of the witnesses to a will, an elderly woman whose memory was not clear, testified that the instrument
was not identified to her as a will, and the second witness, whose testimony contained contradictions, testified the will
was not subscribed by the testator at the time of her attestation, the will which contained an attestation clause, was
entitled to probate where the circumstances surrounding its execution indicated probable compliance with this section.
Re Thompson's Will (1947) 189 Misc 873, 68 NYS2d 123, affd 274 AD 850, 81 NYS2d 923.
While the testimony of an attorney supervising the execution of a will is accorded great weight and the courts have
resorted to practical solutions where witnesses have proved hostile or forgetful in order to avoid defeat of the will, no
such liberal rule will be applied as to the proof of execution of a subsequent will revoking a prior will which in turn was
revoked so that if the later instrument were deemed to have veen properly executed the testator would have died
intestate. Re Andrew's Will (1949) 195 Misc 421, 88 NYS2d 32.
The fact that witnesses failed to recall whether there was publication of will did not establish fact of no publication.
Re Will of Felson (1954) 206 Misc 988, 135 NYS2d 737.
A will containing an attestation clause is to be admitted to probate even though the testimony of one of the two
subscribing witnesses is vague and uncertain on the issue of due execution. Re Hupfauer's Will (1948, Sur) 84 NYS2d
169.
Where one subscribing witness to a will testified by deposition before the probate clerk establishing to the
satisfaction of the Surrogate that the instrument was executed in conformity with this section and that testatrix was free
from restraint and competent, and the other attesting witness had no recollection of signing and no record of the events
but acknowledged that it looked like his signature under a complete attesation clause, and there was no opposing
evidence, probate was granted. Re Goldberg's Will (1954, Sur) 139 NYS2d 71.
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97. Hostile witness
While the testimony of an attorney supervising the execution of a will is accorded great weight and the courts have
resorted to practical solutions where witnesses have proved hostile or forgetful in order to avoid defeat of the will, no
such liberal rule will be applied as to the proof of execution of a subsequent will revoking a prior will which in turn was
revoked so that if the later instrument were deemed to have veen properly executed the testator would have died
intestate. Re Andrew's Will (1949) 195 Misc 421, 88 NYS2d 32.
Testimony of a subscribing witness to a will to the effect that this section was not complied with, which was
contradicted by the testimony of the other witness as well as by other independent evidence, must be disregarded as
unbelievable where it appears that the witness was hostile because no provision was made for him in the will. Re
Schik's Will (1945, Sur) 53 NYS2d 669.
98. Interested witness
Testimony of witnesses in proceeding commenced for purpose of having codicil admitted to probate was properly
excluded where the witnesses stood to either gain or lose as legatees by the direct legal operation and effect of the
judgment. Re Will of Sheehan (1976, 4th dept) 51 AD2d 645, 378 NYS2d 141.
Named beneficiary under 2 wills immediately preceding will executed by decedent in 1990 was "person interested"
in outcome within meaning of CLS CPLR § 4519, and thus was properly precluded from testifying as to any personal
transactions or communications with decedent despite fact that, without her testimony, respondent might encounter
practical difficulties in admitting either prior will to probate should 1990 will fail. In re Estate of Murtlow (1999, 3d
Dept) 258 AD2d 686, 685 NYS2d 323, app den 93 NY2d 814, 697 NYS2d 562, 719 NE2d 923.
Question of whether testimony of subscribing witness, who was also a beneficiary, would be necessary to probate
of propounded instrument would be determined according to the law of the place where the will was executed. Re Will
of Valente (1957) 8 Misc 2d 156, 166 NYS2d 452.
99. Deceased or absent witness; probate allowed
Where one witness was since deceased, and the other a resident of a foreign state, their testimony was dispensed
with and the propounded document was admitted to probate where it was established that it was executed in the manner
prescribed by law, and at the time thereof decedent was of sound mind and free from restraint. Re Will of Swenson
(1956) 3 Misc 2d 239, 151 NYS2d 206.
It was sufficient to establish the genuineness of an instrument propounded for probate 38 years after execution, one
of the subscribing witnesses having died and the whereabouts of the other being unknown, that genuineness of
decedent's handwriting and that of the deceased witness was established to the court's satisfaction, as authenticity of
such an ancient document could, under the circumstances, be assumed. Re Will of Samelson (1963) 40 Misc 2d 623,
243 NYS2d 345.
Where two of three subscribing witnesses to an instrument propounded as a will are deceased, but the handwriting
is proved, the instrument is entitled to probate upon the deposition of the surviving subscribing witness establishing
genuineness of the instrument, validity of its execution, and competency of the deceased testator. Re Will of Blagen
(1962, Sur) 231 NYS2d 92.
100. --Probate denied
Where the whereabouts of the subscribing witnesses to the propounded instrument cannot be ascertained after the
exercise of due diligence, and no witness who can testify to the genuineness of the signature of the testator and those of
the subscribing witnesses is available and the proponent is unable to meet any of the alternative requirements of § §
141 and 142 of the Surrogate Court Act in order to establish due execution of the said instrument, probate of the
propounded instrument must be denied. Re Lee's Will (1944, Sur) 46 NYS2d 214.
101. Disregarding testimony
As trier of the facts, the court may reject the testimony of the attesting witnesses to the instrument, in so far as it
tends to negative the performance of the acts requisite to due execution of the will, where one witness testified that he
did not recall that decedent's signature was on the instrument, and the other testified that signature of the decedent was
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not on the instrument when he signed it, although both admitted the genuineness of their signatures thereon. Re Hock's
Will (1936) 160 Misc 621, 290 NYS 525.
While the testimony of both witnesses is needed for the probate of a will, the will may nevertheless be established
even in direct opposition to the testimony of both of them. Re Thompson's Will (1947) 189 Misc 873, 68 NYS2d 123,
affd 274 AD 850, 81 NYS2d 923.
102. Use of other evidence where testimony unreliable
Probate of a will should not be refused because the testator chanced to select forgetful or untruthful witnesses, and
hence, if the circumstances surrounding the execution of an instrument show that it was duly executed as a will it may
be admitted to probate against testimony of all subscribing witnesses, or upon the testimony of one and contrary to
testimony of the other. Re Morley's Will (1910) 140 AD 823, 125 NYS 886.
As trier of the facts, the court may reject the testimony of the attesting witnesses to the instrument, in so far as it
tends to negative the performance of the acts requisite to due execution of the will, where one witness testified that he
did not recall that decedent's signature was on the instrument, and the other testified that signature of decedent was not
on the instrument when he signed it, although both admitted the authenticity of their own signatures thereon. Re
Hock's Will (1936) 160 Misc 621, 290 NYS 525.
Testimony by a witness whose memory was hazy that the document was not signed in her presence or the signature
acknowledged to her will not prevent the probate of a will where other evidence indicates that the decedent was a very
clever woman who was not forgetful, that she had extensive notes of instructions given to her by a lawyer respecting the
proper execution of a will, and that an eminent authority on questioned documents indicated that the signatures of the
decedent and of the two witnesses and the date were all written by the same pen. Re Cardwell's Will (1941) 176 Misc
1059, 29 NYS2d 873.
Though one of the witnesses to a will, an elderly woman whose memory was not clear, testified that the instrument
was not identified to her as a will, and the second witness, whose testimony contained contradictions, testified the will
was not subscribed by the testator at the time of her attestation, the will which contained an attestation clause, was
entitled to probate where the circumstances surrounding its execution indicated probable compliance with this section.
Re Thompson's Will (1947) 189 Misc 873, 68 NYS2d 123, affd 274 AD 850, 81 NYS2d 923.
Where one subscribing witness testifies to the due and proper execution of the will, and a second subscribing
witness denies the existence of every fact necessary to establish the will, the will "may necessarily be established upon
proof of the handwriting of the testator, and of the subscribing witnesses, and also of such other circumstances as would
be sufficient to prove the will upon the trial of an action" (Surr Ct Act, § 142). Re Estate of Bright (1959) 20 Misc 2d
789, 189 NYS2d 234, affd (1st Dept) 12 AD2d 745, 210 NYS2d 754, app den (1st Dept) 13 AD2d 629, 215 NYS2d 463.
103. --Effect of attestation clause
Though one of the witnesses to a will, an elderly woman whose memory was not clear, testified that the instrument
was not identified to her as a will, and the second witness, whose testimony contained contradictions, testified the will
was not subscribed by the testator at the time of her attestation, the will which contained an attestation clause, is entitled
to probate, where the circumstances surrounding its execution indicate probable compliance with this section. Re
Thompson's Will (1947) 189 Misc 873, 68 NYS2d 123, affd 274 AD 850, 81 NYS2d 923.
A will containing an attestation clause is to be admitted to probate even though the testimony of one of the two
subscribing witnesses is vague and uncertain on the issue of due execution. Re Hupfauer's Will (1948, Sur) 84 NYS2d
169.
Where one subscribing witness to a will testified by deposition before the probate clerk establishing to the
satisfaction of the Surrogate that the instrument was executed in conformity with this section and that testatrix was free
from restraint and competent, and the other attesting witness had no recollection of signing and no record of the events
but acknowledged that it looked like his signature under a complete attestation clause, and there was no opposing
evidence, probate was granted Re Goldberg's Will (1954, Sur) 139 NYS2d 71.
Where less than a year had elapsed between execution of the will in question and the hearing on application to
probate the will, recitals in the attestation certificate as to due execution of the instrument must yield to positive
recollections of the witnesses, who testified that none of them saw testator sign and failed to testify that he
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acknowledged his signature to any two witnesses, as required by this section. Re Reilly's Will (1960, Sur) 205 NYS2d
641.
104. --Attorney's testimony
Where the attorney-draftsman supervised the will's execution, there was a presumption of regularity that the will
was properly executed in all respects. In re Spinello (2002, 2d Dept) 291 App Div 2d 406, 736 NYS2d 894.
Where there was a conflict of testimony between subscribing witnesses, one, the niece of decedent who testified
against due execution, and the other, a lawyer with thirty years experience at the bar, including twelve years as
surrogate, whose testimony indicated valid execution, it was held that there was due execution of the will. Re Abare's
Estate (1931) 141 Misc 143, 252 NYS 657.
In the probate of a lost or destroyed will, testimony of the attorney preparing the document that his wife "must have
been" the other witness to the will after prior testimony by him that it might have been a neighbor woman, in addition to
the testimony of his wife that she signed some paper which she assumed was a will, does not sufficiently establish that
the wife was the second witness, and accordingly in view of § § 141, 142 of the Surrogate's Court Act, the will may
not be probated. Re Andrews' Will (1949) 195 Misc 421, 88 NYS2d 32.
While the testimony of an attorney supervising the execution of a will is accorded great weight and the courts have
resorted to practical solutions where witnesses have proved hostile or forgetful in order to avoid defeat of the will, no
such liberal rule will be applied as to the proof of execution of a subsequent will revoking a prior will which in turn was
revoked so that if the later instrument were deemed to have been properly executed the testator would have died
intestate. Re Andrews' Will (1949) 195 Misc 421, 88 NYS2d 32.
105. --Ancient documents
It was sufficient to establish the genuineness of an instrument propounded for probate 38 years after execution, one
of the subscribing witnesses having died and the whereabouts of the other being unknown, that genuineness of
decedent's handwriting and that of the deceased witness was established to the court's satisfaction, as authenticity of
such an ancient document could, under the circumstances, be assumed. Re Will of Samelson (1963) 40 Misc 2d 623,
243 NYS2d 345.
XI. Attestation Clauses
106. In general; weight as evidence
When everything that happened at the execution of a will is detailed minutely and the accounts of witnesses, both
for proponent and contestants, substantially agree, the presence or absence of an attestation clause can have little, if any,
weight. Re Kenney's Will (1917) 179 AD 258, 166 NYS 478.
Recitals contained in attestation clause of will are generally admissible to establish proper execution of will. In re
Estate of Ruso (1995, 3d Dept) 212 AD2d 846, 622 NYS2d 137.
Requirements for proper execution of will were met where 2 attesting witnesses signed self-executing affidavit that
testator "was of sound mind, memory and understanding and not under any restraint or in any respect incompetent to
make a Will," and surviving witness testified to compliance with due execution requirements of CLS EPTL § 3-2.1. In
re Clapper (2001, 3d Dept) 279 AD2d 730, 718 NYS2d 468.
The presumption is in favor of due execution of a will, and failure of recollection by witnesses will not defeat
probate of a will if attestation clause and surrounding circumstances satisfactorily establish its execution. Re Will of
Felson (1954) 206 Misc 988, 135 NYS2d 737.
A properly worded attestation clause is always some proof of the due execution of a will. Will of Santangelo
(1958) 10 Misc 2d 1002, 170 NYS2d 175.
Primary purpose of requiring that will be attested is to render available proof that there has been a compliance with
statutory requisites of execution of will, and that instrument offered for probate is exact paper which alleged testator
signed and not a surreptitious will fraudulently substituted. Re Will of Kiefer (1974) 78 Misc 2d 262, 356 NYS2d 520.
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The fact that the testatrix's signature appeared below the witnesses' signatures on her will would not be fatal to the
probate of the will where, though it is preferable that signatures of witnesses be subscribed either beneath or next to the
signature being witnessed, all of the signatures on the subject will followed the dispositive provisions of the will as
required by EPTL § 3-2.1(a); additionally, the witnesses' failure to utilize the attestation clause on the printed will
form would not be fatal to the probate of the will, since an attestation clause is not a statutory prerequisite to a valid
will. Re Estate of Bochner (1983) 119 Misc 2d 937, 464 NYS2d 958.
A properly worded attestation clause is always some proof of the due execution of the will. Re Nast's Will (1944,
Sur) 46 NYS2d 771.
The presence of an attestation clause gives rise to an inference of compliance with this section. Re Surak's Will
(1944, Sur) 48 NYS2d 400.
An attestation clause is recognized by the courts as evidence and in the event of death, disability or removal of an
attesting witness or forgetfulness or hostility on his part will be received in evidence as prima facie proof of the facts
certified to therein. Re Hupfauer's Will (1948, Sur) 84 NYS2d 169.
An attestation clause constitutes sufficient proof of "such other circumstances" to satisfy those requirements of the
statute and enable the probate of the will which in the absence of such clause signed by the witnesses must have been
denied probate. Re Hupfauer's Will (1948, Sur) 84 NYS2d 169.
107. Necessity of corroboration
The presence of an attestation clause does not carry any presumption that the will was executed according to the
statute, where the subscribing witnesses did not pay any attention to the language of said clause. Re King's Will (1927)
130 Misc 907, 225 NYS 536.
A properly worded attestation clause, signed by the witnesses and corroborated either by the circumstances
surrounding the execution of the instrument, or other competent evidence as to due execution, is sufficient to establish a
will signed by the testator even against the testimony of the attesting witnesses to the contrary. Re Nast's Will (1944,
Sur) 46 NYS2d 771.
XII. Other Evidence of Due Execution
108. In general; execution supervised by attorney
Surrogate's Court properly charged jury that it could infer that will was executed in compliance with relevant
statutory requirements because execution had been supervised by decedent's attorney, even though decedent's attorney
was executor of will and thus could not be said to have been "disinterested." In re Estate of Murtlow (1999, 3d Dept)
258 AD2d 686, 685 NYS2d 323, app den 93 NY2d 814, 697 NYS2d 562, 719 NE2d 923.
Written instructions given to the testatrix by her attorney for the execution of her will and received by her on the
day thereof are admissible to show the occasion and preparation of the will and to show testatrix probably was aware of
the proper method of execution of a will. Re Thompson's Will (1947) 189 Misc 873, 68 NYS2d 123, affd 274 AD 850,
81 NYS2d 923.
A strong presumption of compliance with the requirements of this section arises where the instrument is executed
under the supervision of experienced persons, familiar not only with the forms required by law but also with the
importance of strict adherence thereto. Re Andrews' Will (1949) 195 Misc 421, 88 NYS2d 32.
Where execution of a will is under supervision of a lawyer, or any person fully conversant with the statutory
requirements as to execution, a presumption of fact exists that execution was in compliance with the formal statutory
requirements. Re Estate of Morgan (1961) 32 Misc 2d 628, 223 NYS2d 537.
Where a testator spoke no English but only Italian and the will was drawn by an attorney who was shown to be
competent to translate from Italian to English and vice-versa, one of the two witnesses did not understand Italian, each
provision of the will which was drawn in English was translated into Italian by the attorney after it had been read to
testator in English in presence of witnesses, the attorney asked the testator whether it was her last will and testament and
if she requested the witnesses to act as such, putting the question first in English and then in Italian and she answered
"yes," and then asked if she understood and she answered "perfetto," held that the will was executed in accordance with
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the above statute. Re Will of Albarino (1964) 45 Misc 2d 216, 256 NYS2d 762, affd 23 AD2d 535, 256 NYS2d 784, affd
16 NY2d 927, 264 NYS2d 918, 212 NE2d 436.
Where it is shown that a will was executed under the supervision of an attorney, a presumption is created that the
will is executed in accordance with the formality required by statute. Re Will of Flasza (1968) 57 Misc 2d 347, 292
NYS2d 815 (1968), holding that where attorney in supervised execution of will was dead and other subscribing witness
could not be located and was thought to be dead, will would be probated upon proof of handwriting of witnesses and of
testator, and testimony of transcribing witness would be dispensed with.
Where it is shown that a will was executed under supervision of an attorney, a presumption is created that will was
executed in accordance with formality prescribed by statute. Re Will of Kiefer (1974) 78 Misc 2d 262, 356 NYS2d 520.
Where it is shown that will was executed under supervision of attorney, presumption is created that will was
executed in accordance with formality described by statute. Re Estate of Utegg (1977) 91 Misc 2d 21, 396 NYS2d 992.
Execution of a will under the supervision of a lawyer creates a presumption in its favor. Re Surak's Will (1944,
Sur) 48 NYS2d 400.
Execution of a will under supervision of an attorney creates a presumption that it was executed with the formality
prescribed by law. Re Guarcello's Will (1963, Sur) 236 NYS2d 931.
109. Oral declarations of testator
Oral declarations of a testator are admissible to prove the due publication of a written will and also to show
testator's mental capacity, but are not competent as proof of the due execution or continued existence of the will. Re
Corcoran's Will (1911) 145 AD 129, 129 NYS 165.
Proof of the intentions expressed and the direction given by the testatrix to her attorney who drafted the will is
inadmissible. Re Carvalho's Will (1944, Sur) 57 NYS2d 307.
110. Other factors considered
On proof of the handwriting of the testatrix and that of three deceased witnesses, a prima facie case of due
execution is made out where the will was executed in favor of her husband, who at the same time, pursuant to a plan to
make mutual wills, executed a will in her favor with all the formalities required by the statute before the same witnesses
who attested the wife's will. Re Abel's Will (1910) 136 AD 788, 121 NYS 452.
In probate proceeding, proponents were entitled to judgment during trial based on facts that (1) decedent executed
will in attorney's office in presence of 3 subscribing witnesses, (2) entire execution of will was tape-recorded, which
affirmatively demonstrated decedent's testamentary capacity, and (3) no evidence of fraud was adduced at trial. Re
Estate of Scher (1988, 2d Dept) 137 App Div 2d 605, 524 NYS2d 494.
Evidence supported determination that will was duly executed, despite conflicting testimony as to whether decedent
could actually read her will because she was allegedly blind, where proponent summarized contents of will for her,
decedent indicated that will expressed her wishes, and she understood nature of act she was performing, nature and
extent of her property, and who her heirs were. In re Margolis (1995, 2d Dept) 218 AD2d 738, 630 NYS2d 574, app den
88 NY2d 802, 644 NYS2d 689, 667 NE2d 339.
XIII. Lost or Destroyed Wills
111. In general; burden of proof
Surrogate's Court properly dismissed petition to have unexecuted copy of decedent's will admitted to probate since
petitioners failed to prove its due execution notwithstanding presumption of proper execution attending will prepared by
attorney where (1) will copy did not contain signature of decedent, attorney who prepared it, or attorney's secretary,
who allegedly witnessed execution, (2) neither attorney nor secretary could remember details of alleged execution, and
(3) all that petitioners produced was receipt showing payment for attorney's services plus attorney's statement that it was
his practice not to send bill for services until will has been executed. Re Estate of Philbrook (1992, 3d Dept) 185 AD2d
550, 586 NYS2d 394.
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NY CLS EPTL § 3-2.1
In this proceeding to probate the alleged lost will of the decedent, the proponent must sustain the burden of proof
that the will was executed in compliance with the provisions of this section, before the will can be admitted to probate.
Re Truelsen's Will (1927) 130 Misc 172, 223 NYS 691.
In a proceeding to probate an alleged will, as a lost or destroyed will, under Surrogate's Court Act, § § 143 and
144, the proponent must establish to the satisfaction of the surrogate that a document duly executed, as prescribed by
this section, actually came into existence. Re Herle's Will (1938) 169 Misc 197, 7 NYS2d 189.
In order to probate a lost or destroyed will, there must be proof of the execution of the lost instrument in
conformance with this section. Re Breckwoldt's Will (1939) 170 Misc 883, 11 NYS2d 486; Bethany M. E. Church v
Brooks (1911) 143 AD 685, 128 NYS 250.
112. Draft or copy
In a proceeding to probate a lost will, a prior will which was used as a guide in the preparation of the lost will and
upon which notations of the changes to be made were written, the new will being prepared therefrom, is only admissible
to refresh the recollection of the typist of the lost will, and not as a draft of the lost instrument. Re Millens' Will (1942)
264 AD 936, 36 NYS2d 27, affd 291 NY 613, 50 NE2d 1014,.
Where it has been established that the original of the will was in existence at time of death of testatrix and
thereafter lost or destroyed by fire, its provisions can be proved by a conformed copy identified by the subscribing
witnesses as identical with the original. Re Will of Eisele (1961) 31 Misc 2d 173, 219 NYS2d 849.
Where a decedent executes the original of a will, and likewise a carbon copy thereof, revoking all prior wills, and
the subscribing witnesses likewise sign both the original and the copy, but only the copy can be found after decedent's
death, there is a presumption that he destroyed the original during his lifetime with intent to revoke it, the carbon copy
cannot be probated where it is marked "copy" and does not purport to be the original; the revoking clause therein is,
however, effective against prior wills, and the court can only find that decedent died intestate. Re Estate of Mishkin
(1962, Sur) 235 NYS2d 599.
113. Codicil
A properly executed 1949 codicil established the non-revocation, or if it had not been revoked, revised and
republished, a 1939 propounded will, a copy of which was offered for probate. Re Will of Marshall (1956, Sur) 154
NYS2d 477.
114. Oral testimony
In a proceeding to probate a destroyed will, where there was no correct copy or draft, it was necessary for the
provisions of the will to be clearly and distinctly proved by at least two credible witnesses. Re Yanover's Will (1959)
16 Misc 2d 128, 182 NYS2d 961.
XIV. Multiple Execution
115. In general
In cases of simultaneous execution of a will and a copy, the original was properly admitted and the copy should be
filed for the record. Re Will of Sniper (1957, 3d Dept) 5 AD2d 736, 168 NYS2d 745, reh and app den (3d Dept) 5 AD2d
797, 170 NYS2d 314 and app dismd 4 NY2d 906, 174 NYS2d 657, 151 NE2d 90.
Where testator caused an original and two carbon copies of his will to be typed, but executed only the carbon copy,
there is sufficient compliance with this section and the executed carbon copy will be admitted to probate. Re Wieters'
Will (1942) 179 Misc 265, 38 NYS2d 782.
Where a carbon copy of a will has been executed in accordance with this section, and the decedent's competency
and freedom from restraint has been established, the carbon copy may be admitted to probate where the original ribbon
copy was destroyed without intent to revoke. Re Martin's Will (1943) 180 Misc 113, 40 NYS2d 685.
Where decedent executed both a ribbon and a carbon copy of a will, the presumption arising from the
nonproduction of the ribbon counterpart was satisfactorily overcome by testimony of the attorney-draughtsman that the
Page 46
NY CLS EPTL § 3-2.1
carbon had been delivered to the decedent and the ribbon counterpart had been retained by him and was never in the
decedent's possession but had been lost by him in the course of moving his office on several occasions. Petition of
McGowan (1953) 204 Misc 690, 125 NYS2d 489.
The practice of executing more than one copy of a will has been criticized, but, where all the executed copies are
produced, the instrument, if properly executed, may be admitted to probate as the will of the decedent. Re Chadwick's
Will (1957) 10 Misc 2d 208, 174 NYS2d 762.
Where three copies of a will were made and only the two carbon copies thereof were duly executed, the ribbon
copy being discovered unexecuted at testatrix's death among her valuable papers, the will is entitled to probate. Re
Leavens' Will (1944, Sur) 47 NYS2d 668.
Where the testatrix had executed three counterparts of a will, and retained one, and only two were produced in the
probate proceeding, and the one retained by the testatrix was not found after her death, and sufficient evidence was not
adduced to explain or account for its non-production, the presumption that such copy was destroyed by the testatrix
animo revocandi was not overcome. Re Will of Funk (1955, Sur) 139 NYS2d 225.
XV. Holographic or Nuncupative Wills
116. In general
The law in respect to holographic wills, as to the manner and method of publication, is not so close and severe as
where a will is drawn and executed under direction of an experienced scrivener. Re Dodge's Will (1927) 129 Misc 323,
220 NYS 604, affd 220 AD 794, 221 NYS 814.
The statute makes no exception in cases of holographic wills; its requirements must be observed as in the case of
will drafted by another at the instance and request of a testator, although in a close case the evidence will be interpreted
more favorably to the proponent. Re Douglas' Will (1948) 193 Misc 623, 83 NYS2d 641.
Intention is not be considered when passing upon the formal statutory requirements in the execution of wills, and
there is no exception with respect to instruments wholly in the testator's hand. Re Robinson's Will (1951) 201 Misc
439, 103 NYS2d 967.
A holographic will containing the words "my Will and Testament" witnessed by two persons made by a decedent
who was a notary public and deposited in the Surrogate's Court for safekeeping was admitted to probate, where the
court was satisfied of the validity of the propounded instrument, that it was executed in accordance with the
requirements of the Statute of Wills, and that at the time of its execution decedent was of sound mind, competent in all
respects to make a will and not under restraint. Re Will of Amico (1966) 50 Misc 2d 681, 270 NYS2d 709.
The statutory requirements in regard to publication are not so strictly applied in the case of holographic wills since
there is slight danger that decedent was unaware that he was executing a will. Re Dodds' Will (1943, Sur) 45 NYS2d
27, affd 268 AD 811, 48 NYS2d 622, which is affd 294 NY 706, 61 NE2d 448.
117. Subscription at end
Probate will be allowed to a paper wholly in the handwriting of the decedent which named executors below the
signature of the decedent, the court disregarding the invalid clause for the appointment of an executor. Re Will of
Whited (1935) 266 NY 507, 195 NE 175.
Where a testatrix writes her name in a blank space left for that purpose in the body of the attestation clause
immediately following her holographic will, she has subscribed the will at end thereof within meaning of the statute.
Re De Hart's Will (1910) 67 Misc 13, 122 NYS 220.
Subd. 1 does not prevent the probate of a holographic will signed only in the attestation clause by the testator,
where, with the exception of the signatures and addresses of the witnesses, it is entirely in handwriting of testator, and it
appears that the will was intended by testator to be his last will and testament; that it reads straightforward from
beginning to end; that every dispositive provision thereof appears above the signature of the testator; that no question of
the genuineness of any other handwriting appearing upon the instrument has been raised; and that no intimation of fraud
is made. Re Eyett's Will (1925) 124 Misc 523, 209 NYS 251.
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NY CLS EPTL § 3-2.1
An holographic will was signed at the end thereof as required and admitted to probate, where the writing was on
note paper which consisted of a sheet of paper folded in half, making four pages, with the fold to the left, and the
writing commenced on what would ordinarily be the first page of a letter written on such note paper, and continued on
what would be the fourth page, filling in that entire page, and continued further on the other side of the paper, unfolded,
with the entire sheet flattened, commencing at the top of the page and continuing in unbroken sequence down to the
bottom of page, and the context of the paper showed an orderly and logical arrangement of the various testamentary
provisions, containing at the end an in testimonium clause with the date of instrument, signature of testatrix and
signatures and residences of subscribing witnesses. Re Murphy's Estate (1936) 160 Misc 353, 289 NYS 952.
A handwritten paper, folded once so as to make four pages of equal size with will provisions started on the first
page and continued consecutively from the bottom of the first to the top of the fourth and ended on the bottom of that
page followed by the signature of the testator and with signatures of subscribing witnesses found in order on the third
page was admitted to probate Re Lubitz' Will (1954) 207 Misc 33, 136 NYS2d 901.
118. Signing in presence of witnesses
On appeal of an order of the Appellate Division, which reversed a Surrogate's decree admitting a two-page
handwritten "will" to probate, the order denying probate would be affirmed where it had not been shown that the
document was executed with the requisite formality, in that there was no proof that the instrument signed by the
deceased and witnessed by two others consisted of only the two numbered pages which were not integrated when found,
there was no proof that the decedent acknowledged to each witness that his signature appeared upon the instrument, and
there was a lack of proof that the witnesses attested the document within one 30-day period as required by EPTL §
3-2.1, so that the statutory presumption of compliance with the latter requirement was unwarranted under the
circumstances. Re Estate of Agar (1983) 59 NY2d 798, 464 NYS2d 752, 451 NE2d 499.
A holographic will consisting of several pages was sufficiently signed and acknowledged and witnessed, although
the testator did not sign in the presence of the attesting witnesses and such witnesses did not sign in the presence of each
other, where all of the witnesses were familiar with testator's signature, which was at the foot of the will and clearly
visible when the witnesses were separately requested to sign as witnesses, and testator acknowledged to two of the
witnesses that the instrument was his will. Re Estate of Knoepfler (1962) 34 Misc 2d 65, 227 NYS2d 965.
119. Publication, acknowledgment, and request to witnesses
Where an instrument was entirely in decedent's handwriting and his actions at the time of the signing of the
witnesses was not such as to justify a finding that he published the instrument as a will, probate should have been
denied for lack of publication Re Pulvermacher's Will (1953) 305 NY 378, 113 NE2d 525, amd 305 NY 923, 114 NE2d
474.
A holographic will offered for probate in this proceeding was not duly executed in accordance with the provisions
of this section, since the evidence does not establish that the will was subscribed at the end thereof by the testatrix or
that it was duly published by the testatrix or that the testatrix acknowledged that the signature to the will was hers at
time she requested the witnesses to sign. Re Simpson's Will (1925) 211 AD 408, 207 NYS 721.
Each of the four requirements contained in this section was complied with in execution of a holographic will
consisting of seven sheets of paper, signed by the testatrix at the bottom of each of six sheets and signed at end of the
attestation clause on one sheet by the testatrix and two witnesses, one of whom testified that testatrix took them from
her bag after saying that it was her will. Re Stever's Will (1944) 268 AD 559, 52 NYS2d 348.
In an action to probate a purported holographic will, probate would be denied where the purported will had been
found on testator's dining room table after his death, where it had consisted of two unfastened sheets of paper, where the
alleged witnesses had not known how many pages the document that they witnessed had contained, where testator had
not signed the document in the presence of the witnesses, where there had been no acknowledgment by testator to one
witness, and where there had been no proof that both witnesses had attested the will within "one thirty day period."
Agar v Agar (1982, 1st Dept) 88 App Div 2d 882, 452 NYS2d 597.
Where both subscribing witnesses to a holographic will positively swear that there was no publication of the
instrument by testator and that they did not know that it was a will until long after they had signed it, probate will be
refused. Re Wilmerding's Will (1912) 75 Misc 432, 135 NYS 516.
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NY CLS EPTL § 3-2.1
Where a testator exhibited to the subscribing witnesses his holographic will, told them it was his will and asked
them to sign as witnesses, and each of them at the time he signed saw the testator's signature at the end of the will,
which signature two of them recognized, the will is entitled to probate although none of the witnesses saw testator sign
or heard him declare the signature to be his, and although the will was exhibited to and signed by each of the witnesses
separately and not in the presence of the others. Re Tactkian's Estate (1919) 107 Misc 590, 176 NYS 877.
A statement of testamentary purpose, made by a soldier at camp preparing to go overseas, to a single witness on
two occasions in substantially identical terms, is a sufficient compliance with this section. Re Mallery's Will (1926)
127 Misc 784, 217 NYS 489, affd 220 AD 794, 221 NYS 859, affd 247 NY 580, 161 NE 190.
A decedent substantially complied with all the requirements of this section, and in the absence of fraud or undue
influence, the paper offered for probate as a holographic will must be regarded as decedent's last will and testament,
where it appears that she requested two persons to witness her will and after affixing her own signature to the
instrument each witness signed as such in the place indicated by the decedent after one of them had examined the paper
and saw that it purported to be a "will," although both witnesses testify that they did not see the decedent sign. Re
Dodge's Will (1927) 129 Misc 323, 220 NYS 604, affd 220 AD 794, 221 NYS 814.
Where one witness watched the testator write her holographic will which when completed was handed signed to her
by the testatrix who inquired as to whether or not it was legible, and the testatrix replied affirmatively when asked by
the second witness if she had written the document, and the testatrix directed both witnesses to sign, even though the
second witness did not complete his signature in the room, his pen being faulty, there is a sufficient compliance with the
requirements of this section. Re Kilduff's Will (1935) 155 Misc 509, 280 NYS 198.
Will written in handwriting of testator was entitled to probate, notwithstanding the fact, that there was an interval of
about a year between the attestations. Re Will of Willenborg (1958) 16 Misc 2d 419, 181 NYS2d 146.
120. Subscription by witnesses
An unattested letter may not be probated as a will even when written by a soldier in active military service, since a
writing to constitute a will must be subscribed by two witnesses. Re Zaiac's Will (1939) 279 NY 545, 18 NE2d 848.
Where the decedent signed her name at the end of a writing she had made on both sides of a sheet of paper, and
dated it, "May 27, 1915," but there was no attestation clause or other writing or; after her death said writing was found
in an envelope, upon which was written "Last Will and Testament of Isabelle Perrine Town of Minden Dated Witnesses
Carrie Van Buren Simon Van Buren June 21st, 1919," the document had not been executed as required and probate
thereof will be denied. Re Perrine's Will (1919) 109 Misc 459, 180 NYS 333.
On a proceeding for the probate of a holographic document as decedent's will, where it appears that the signatures
of the subscribing witnesses thereto were in the margin slightly below the middle of the sheet of paper though certain
dispositive provisions terminated at the bottom of the sheet, it cannot be said that the signatures of the witnesses were
signed in compliance with subd. 4. Re Levanti's Will (1931) 141 Misc 248, 252 NYS 497.
Where a decedent signed a certain paper written wholly in her own hand, properly declared the paper to be her will,
and requested each of two witnesses to sign same, but the witnesses failed to sign, the paper will not be admitted to
probate, since the statute makes no exception to subd. 4. Re Snyder's Estate (1935) 154 Misc 156, 277 NYS 577.
A holographic instrument will be denied probate where the second subscribing witness wrote his name and address
in the margin of instead of at the end of the instrument. Re Oltmann's Will (1942) 178 Misc 174, 34 NYS2d 190.
A holographic will executed in New York State by a resident of New York and attested by only one witness must
be denied probate. Re Kosberg's Estate (1954) 205 Misc 496, 128 NYS2d 432.
An instrument in handwriting of the decedent, an attorney, signed by him but not attested was denied probate. Re
Wills of Weinberger (1954) 206 Misc 770, 135 NYS2d 120.
Holographic will written on both sides of a small sheet of paper was valid where signatures of witnesses thereto
were written in the only available space, even though they were not written at the end of the paper in compliance with
this section, since there was no possibility of fraudulent additions to the instrument. Re Will of Kobrinsky (1966) 51
Misc 2d 222, 273 NYS2d 156.
121. Incorporation by reference
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NY CLS EPTL § 3-2.1
Papers in the handwriting of a testatrix, found at her home among other papers after her death, consisting of five
sheets, two of one kind of paper, two of another and the final sheet of a still different kind and trimmed to a different
length, four pages or two sheets of which were pasted together at the top and the other sheets fastened thereto only by
metal clips slipped over but not piercing the ends of the sheets, there being no continuity in sentences between the
writings on different pages except where they were on the same folded sheet, and no continuity or logical arrangement
of testamentary provisions, could not be admitted to probate as the last will and testament of the testatrix, even though
execution and publication thereof as her will were established in full compliance with this section, where, on
examination of the attesting witnesses, it appeared that neither saw any of the writing except that on the page on which
they signed their names, and did not know how many sheets there were. Re Allen's Will (1940) 282 NY 492, 27 NE2d
22, reh den 283 NY 643, 28 NE2d 40.
It was sufficient to satisfy the court that a will was in the same physical condition as it was when testator and each
of three subscribing witnesses signed it where, although it was a holographic will, consisting of three unattached sheets
of paper with writing on both sides, the various pages were consecutively numbered and there was linguistic continuity
between the paragraphs and pages. Re Estate of Knoepfler (1962) 34 Misc 2d 65, 227 NYS2d 965.
Decedent validly revoked later instrument by destroying it and re-executed and republished former will in
substantial compliance with the statute when he added and executed a holographic codicil thereto at a later date before
witnesses. Re Cohen's Will (1954, Sur) 133 NYS2d 459.
122. Integration
A holographic, unattested paper signed by decedent while in the State of New York was denied probate for failure
of due execution and could not be incorporated into a later will though referred to therein. Re Will of Landsberg (1956,
Sur) 157 NYS2d 508.
123. Testimony of witnesses
A holographic will should be refused probate where it appeared that it had been signed by the decedent in the
presence of two safe deposit company employees to whom the decedent told that he was going on a trip and wanted to
leave instructions and "to take care of something" in case something happened to him Such statements were too
equivocal where the decedent did not tell the witnesses that it was a will and they did not know that they were
witnessing a testamentary disposition Re Pulvermacher's Will (1953) 305 NY 378, 113 NE2d 525, amd 305 NY 923, 114
NE2d 474.
124. Status of testator or circumstances of death
Holographic will providing that if testator died on proposed trip to India a named person was to be his sole heiress,
was effective only if testator died on such trip. Re Estate of Pascal (1956) 2 Misc 2d 337, 152 NYS2d 185, affd (1st
Dept) 4 AD2d 941, 167 NYS2d 1002, app den (1st Dept) 4 AD2d 1021, 169 NYS2d 419.
A holographic will executed in the manner prescribed by this section was admitted to probate but declared
ineffectual where the will gave all the property of the testator to his wife and provided that in the case of accidental and
simultaneous instant death of both testator and his wife, then property should go to wife's sister and wife predeceased
the testator. Re Doepfer's Will (1958) 10 Misc 2d 991, 170 NYS2d 957.
An unattested instrument written in longhand purporting to be a will must be denied probate where it appears that
the testator was not in military service and there is no proof that the writing was executed in a jurisdiction recognizing
holographic wills. Re Cartoon's Will (1944, Sur) 48 NYS2d 834.
XVI. Compliance With Law of Testator's Domicile
125. In general; foreign state
Where the proof as to the execution of decedent's alleged will and alleged codicil to the will complies with the
statutory provisions of this state, compliance with the law of Connecticut, the alleged domicile of decedent, was not
required to be proved. Re Hart's Estate (1936) 160 Misc 198, 289 NYS 731, mod on other grounds 250 AD 753, 295
NYS 765.
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NY CLS EPTL § 3-2.1
Under the policy expressly declared in § § 21-24 of this law, a will of a nonresident may be admitted to probate in
this state if it complies with the requirements of one of those sections, and if there is property here. Re Estate of Turton
(1961) 30 Misc 2d 96, 215 NYS2d 131.
A will executed in Virginia at a time when the testator was a domiciliary of that state, may be probated in this state
although not executed in compliance with the requirements of § 21 where the instrument was properly executed by the
laws of Virginia. Re Ellison's Will (1944, Sur) 47 NYS2d 685.
Codicil executed in Connecticut in accordance with its laws but not in the manner prescribed by New York Law
was nevertheless admitted to probate with the will. Re Simmons' Will (1954, Sur) 132 NYS2d 795.
A codicil to a will executed by a testator domiciled in New York cannot be admitted to probate in New York where
it is not attested in the manner prescribed under this section or by the law of the state where the codicil was executed.
Re Will of Blagen (1962, Sur) 231 NYS2d 92.
126. Foreign country
A decedent's will should be admitted to probate, upon the agreement between the parties, though it be a holographic
instrument, made in Italy without attesting witnesses, and at time of its execution was void under laws of this state. Re
Tinker's Will (1925) 124 Misc 723, 209 NYS 589, affd 217 AD 255, 216 NYS 689, mod on other grounds 244 NY 51, 154
NE 819.
In a proceeding for the probate of three unwitnessed and unattested holographic writings by an Austrian who was a
world traveler, but had taken out naturalization papers in the United States, since his domicil remained his domicil of
origin in Austria, and the laws of Austria permit such holographic wills, such writings will be admitted to probate Re
Hansgirg's Will (1949) 196 Misc 948, 94 NYS2d 26.
XVII. Revocation by Writing or Partial Obliteration
127. In general
Since photocopy can be used to prove lost or destroyed will pursuant to CLS SCPA § 1407, it is only reasonable
that photocopy can also be used to prove lost or destroyed original will revocation. Re Estate of Borden (1990) 149
Misc 2d 82, 562 NYS2d 911.
Since revocatory instrument is elevated to same status as will in CLS EPTL § 3-4.1, which provides for revocation
of prior wills, same standards are required to determine validity of revocatory instrument as are required to prove will
under CLS EPTL § 3-2.1. Re Estate of Borden (1990) 149 Misc 2d 82, 562 NYS2d 911.
An obliteration or mutilation, if unaccompanied by the statutory formalities required for the execution of a will, is
wholly ineffective, unless sufficient to revoke the entire will. Re Reedy's Will (1946, Sur) 64 NYS2d 779.
128. Later will
The ribbon copy and an executed carbon copy of an instrument revoking prior wills were effective revocations as
against parties who appeared or had been cited. Petition of Priore (1956) 2 Misc 2d 893, 152 NYS2d 42.
Where an instrument of revocation was drafted by the decedent's attorney who supervised its execution and the
signature of the testator was genuine and the signatures of the subscribing witnesses were made at the same time in the
presence of the decedent and each other and where the instrument recited that the decedent asked the witnesses to act as
such together with a full attestation clause which also stated that the instrument was read to the decedent, such
instrument was competent to revoke a prior will. Re Rothstein's Will (1952, Sur) 112 NYS2d 716.
129. Codicil
The effect of a codicil to a will which has been revoked by a later will is to revive and republish the earlier will as
of the date of the codicil and to impliedly, if not expressly, revoke the intermediate will, so that the codicil and the
earlier will will constitute the final testamentary disposition of the estate. Re Campbell's Will (1902) 170 NY 84, 62 NE
1070.
Page 51
NY CLS EPTL § 3-2.1
Where testator executed a will in January, 1951, retained it in his custody, revoked it by will in May, 1951, which
his attorney retained, and in November, 1952, wrote a codicil at the foot of the revoked will but did not identify the will
to which it was a codicil, the effective will was modified and the revoked will not revived, in the absence of other facts.
Re Estate of Mercer (1955) 207 Misc 346, 137 NYS2d 768, affd 286 AD 997, 144 NYS2d 920.
Republication of a 1954 will by a 1956 codicil revised the 1954 will and operated as a revocation of a 1955 will,
even though the 1956 codicil did not contain a revocation clause. Re Kerner's Will (1958) 14 Misc 2d 545, 179 NYS2d
122.
Where a decedent executed two wills, then executed a codicil which specifically referred to the earlier of the two
wills, such codicil served as a republication of the earlier will and a revocation of the intervening will. Re Munzer's
Will (1961) 31 Misc 2d 691, 221 NYS2d 543.
The so-called "codicils" inserted into a will subsequent to its execution and without compliance with the formalities
of § 21 are ineffective to modify or revoke the instrument. Re Curtiss' Will (1943, Sur) 41 NYS2d 420.
130. Erasing or crossing out
A will may be probated, even though a line thereof has been obliterated which probably named a beneficiary who,
if now identifiable, would take the entire estate, where, however, the obliteration does not destroy the sense of the
remaining parts. Re Lyons' Will (1947, Sur) 75 NYS2d 237.
Where the testator after the execution of his will attempted to modify it by erasing or crossing out certain
provisions and substituting and adding others, the court will admit to probate that part of the will which is presently
legible and which constituted the instrument at the time of original execution, as determined by a scrutiny of the type
and color of ink used and the contents of the provisions of the will, some of which contain statements unknown to the
testator at the time of original execution. Re Lyons' Will (1947, Sur) 75 NYS2d 237.
A partial revocation attempted by cutting, interlineation and earasing, if made by the decedent, is ineffectual since
the formalities required by this section were not followed. A carbon copy may be offered to establish the condition in
which the original instrument was at the time it was executed by the decedent. Re Park's Will (1953, Sur) 123 NYS2d
698.
131. Interlineation
Where the testator about two years after the execution of the propounded paper sought to change his will by adding
another legatee to those named in main dispositive paragraph, such addition was ineffective. Re Estate of
Lewandowski (1969) 60 Misc 2d 1005, 304 NYS2d 263.
Interlineations written in pencil and pencilled lines drawn through certain provisions of a typewritten will
subsequent to its execution, not having been subscribed, witnessed, or accompanied by some other instrument executed
in accordance with the formalities required of a will, are ineffective to revoke the will in whole or in part. Re Kurtz'
Will (1946, Sup) 64 NYS2d 749.
Where the testator after the execution of his will attempted to modify it by erasing or crossing out certain
provisions and substituting and adding others, the court will admit to probate that part of the will which is presently
legible and which constituted the instrument at the time of original execution, as determined by a scrutiny of the type
and color of ink used and the contents of the provisions of the will, some of which contain statements unknown to the
testator at the time of original execution. Re Lyons' Will (1947, Sur) 75 NYS2d 237.
A partial revocation attempted by cutting, interlineation and erasing, if made by the decedent, is ineffectual since
the formalities required by this section were not followed. A carbon copy may be offered to establish the condition in
which the original instrument was at the time it was executed by the decedent. Re Park's Will (1953, Sur) 123 NYS2d
698.
132. Cutting or tearing
Where the first page of a codicil was cut so that the two parts thereof were completely separated but testimony
established that the cut was inadvertently made by an employee of the attorneys seeking probate when a sealed envelope
Page 52
NY CLS EPTL § 3-2.1
containing the will and codicil was opened with a letter cutter, the whole first page was entitled to probate. Re
Wishnatzki's Will (1955) 207 Misc 985, 141 NYS2d 892.
Where the testator cut or tore out a single paragraph from his will and proof was available to establish the excised
protion, the will may be probated. Re Reedy's Will (1946, Sur) 64 NYS2d 779.
A partial revocation attempted by cutting, interlineation and erasing, if made by the decedent, is ineffectual since
the formalities required by this section were not followed. A carbon copy may be offered to establish the condition in
which the original instrument was at the time it was executed by the decedent. Re Park's Will (1953, Sur) 123 NYS2d
698.
Unexplained erasures on the first page of decedent's will did not prohibit probate where there were no
circumstances to cast suspicions on the erasures as alterations Re Gordon's Will (1954, Sur) 136 NYS2d 125.
133. Oral modification or revocation
Where evidence established duly executed will had never been returned to testator after execution, and there was
therefore no presumption of revocation, oral statements of testator were not sufficient proof of revocation. Re Suarez's
Estate (1953, Sur) 131 NYS2d 419, affd 283 AD 774, 128 NYS2d 594.
134. Sustaining original or unmodified portions of will
Where the testator cut or tore out a single paragraph from his will and proof was available to establish the excised
portion, the will may be probated in its original form. Re Reedy's Will (1946, Sur) 64 NYS2d 779.
A will may be probated, even though a line thereof has been obliterated which probably named a beneficiary who,
if now identifiable, would take the entire estate, where, however, the obliteration does not destroy the sense of the
remaining parts. Re Lyons' Will (1947, Sur) 75 NYS2d 237.
Where the testator after the execution of his will attempted to modify it by erasing or crossing out certain
provisions and substituting and adding others, the court will admit to probate that part of the will which is presently
legible and which constituted the instrument at the time of original execution, as determined by a scrutiny of the type
and color of ink used and the contents of the provisions of the will, some of which contain statements unknown to the
testator at the time of original execution. Re Lyons' Will (1947, Sur) 75 NYS2d 237.
A partial revocation attempted by cutting, interlineation and erasing, if made by the decedent, is ineffectual since
the formalities required by this section were not followed. A carbon copy may be offered to establish the condition in
which the original instrument was at the time it was executed by the decedent. Re Park's Will (1953, Sur) 123 NYS2d
698.
FORMS
Form 1 -- Last Will and Testament *
Form 2 -- Last Will and Testament with Trust for Children; Waiver of Right to Election
Form 3 -- Last Will and Testament-Large Estate-Provisions for Multiple Trusts and Foundations *
Form 4 -- Clause Making Joint and Mutual Will Irrevocable After Death of Either Spouse
Form 5 -- Contract for Mutual Wills
Form 6 -- Complaint for Enforcement of Joint Will
Form 7 -- Judgment of Supreme Court Enforcing Joint Will
Form 8 -- Complaint for Specific Performance of Contract To Make Will
Form 9 -- Married Person's Will Leaving Entire Estate to Spouse
Form 10 -- Will of Single Person Without Children
Form 11 -- Specific Gift of Stock in Closely-Held Corporation
Form 12 -- Gift of Sole Proprietorship To Be Managed by Persons Familiar With Business
Form 13 -- Gift of Residue to Trustworthy Individual for Redistribution in Accordance With Separate Memorandum
Form 14 -- Memorandum as to Disposition of Tangible Personal Property
Form 15 -- Authorization To Perform Autopsy
Form 16 -- Gift of Body or Part Thereof
Form 17 -- "Living Will" Requesting Not To Be Kept Alive by Artificial Means or Heroic Measures
Form 18 -- Affidavit of Family Tree
Page 53
NY CLS EPTL § 3-2.1
Form 19 -- Supplemental Affidavit of Family Tree
Form 1
Last Will and Testament *
* This form was provided courtesy of Timothy W. DeJohn, Esq., Rochester, New York.
Editor's Note: Each page of a will must have a statement, preferably at bottom, that it is the last will and testament of
[testator] and the respective page number.
LAST WILL AND TESTAMENT
OF
[-----]
I, [-----] , a resident of the City of Canandaigua, County of [-----] and State of New York, do make, publish and declare
this to be my LAST WILL AND TESTAMENT, hereby revoking all wills and codicils heretofore made by me
FIRST: I direct that all my just debts (including unpaid charitable pledges whether or not the same are enforceable
obligations of my estate), my funeral expenses, and the expenses of my last illness be paid as soon as is practicable after
my death.
SECOND: I direct that my Executors pay out of my residuary estate, without apportionment, all estate, inheritance and
like taxes imposed by the government of the United States, or any state or territory thereof, or by any foreign
government or political subdivision thereof, in respect of all property required to be included in my gross estate for
estate or like tax purposes, by any such governments, whether the property passes under this will or otherwise, without
contribution by any recipient of any such property; provided, however, that no residuary beneficiary shall by reason of
this provision be denied any exemption or deduction which by law endures to the benefit of such beneficiary.
THIRD: To my wife [-----] , I give all the household furnishing situate on premises at [-----] Road, [-----] , New York.
FOURTH: To my wife, [-----] , I also give and bequeath the following items of personal property:
(a) All paintings other than those specified for [-----]
(b) The oriental rugs situate on premises at [-----] Road, [-----] , New York.
(c) The high-backed chair now in the living room.
(d) The blue winged chair now in the living room.
(e) The recliner chair now in the living room.
(f) The sewing machine.
(g) Any video tape recorder(s) I may own.
(h) Any video tapes I may own.
(i) Any television set(s) I may own.
(j) Any sheet music I may own
(k) Any tape recordings I may own
(l) All my high-fidelity sound reproduction equipment
Page 54
NY CLS EPTL § 3-2.1
FIFTH: I am the owner of an extensive collection of musical recordings and I direct that they shall be distributed as
follows:
(a) To my wife, [-----] , I give my collection of long-paying record albums.
(b) All of my records made by [-----] , 78 rpm, I give to my daughter, [-----] .
(c) The balance of my collection of recording I give to my wife, [-----] , and my daughter [-----] and [-----] , to be
divided equally between them, unless they shall agree otherwise.
SIXTH: To my stepson, [-----] , I give my gun collection, including handguns and rifles.
SEVENTH: To my daughter, [-----] , I give my book collection to keep or dispose of as she shall see fit; also, the Ithaca
Calendar Clock now on the mantel in the living room and two Susan Sweet watercolors of her choice.
EIGHTH: To my stepson, [-----] , I give any sailboat which I may own at the time of my death.
NINTH: There are presently located in my home two antique bookcases and two small marble-top tables which
belonged to my former wife, [-----] . I give said bookcases and tables to my stepchildren, [-----] and [-----] , each to
select one bookcase and one table.
TENTH: To my stepdaughter [-----] , I give and bequeath my diamond dinner ring.
ELEVENTH: To my daughter, [-----] , I give my man's small diamond ring.
TWELFTH: I own several cornets. To my daughter, [-----] , I give my Getzen Eterna and my Benge cornets. To my
daughter, [-----] , I give my Getzen Capri cornet. The remainder of my cornet collection I give to my wife, [-----] .
THIRTEENTH: To my stepson, [-----] , I give the sum of [-----] Dollars ($ [---] )
FOURTEENTH: To my stepdaughter, [-----] , I give the sum of [-----] ($ [---] ).
FIFTEENTH: All of the rest, residue and remainder of my property, consisting of real property, personal property, or
mixed, I give devise and bequeath as follows:
(a) One-third to my wife, [-----] .
(b) One-third to my daughter, [-----] .
(c) One-third to my Trustee, IN TRUST, for the purpose of providing for the reasonable and necessary health,
support, maintenance and educational needs of my daughter, [-----] , to be paid to her as follows: [-----] Dollars to be
paid to her within thirty (30) days of the funding of the Trust; thereafter, and the Trustee shall pay up to [-----] Dollars,
principal and interest, per year, as she may request, together with additional sums which the Trustee may deem
necessary to meet any medical or other emergency, until said Trust shall be depleted or until [-----] shall reach the age
of fifty (50) years, whichever shall first occur. In the event that my daughter, [-----] shall die before the trust is
terminated, then I direct the Trustee to terminate the trust and deliver to my daughter [-----] , or her heirs, all of the
principal and accumulated interest in the Trust.
SIXTEENTH: In the event that my daughter, [-----] shall not survive me for a period of thirty (30) days, then:
(a) I give to [-----] the sum of [-----] Dollars ($ [---] ), IN TRUST, for the use and benefit of [-----] , for her health,
support, maintenance and education, and with the expectation that it shall be primarily used for her education. Any
principal and accumulated interest remaining in said trust shall be distributed when said [-----] shall have reached the
age of twenty-five (25) years.
Page 55
NY CLS EPTL § 3-2.1
(b) I give to my wife, [-----] , an additional sum of [-----] Dollars ($ [---] ).
(c) All of the rest and remainder of the share which was to have passed to my daughter, [-----] had she so survived
me, I give to my Trustee, IN TRUST, for the benefit and use of my daughter, [-----] , under the terms of conditions of
the trust established hereinabove.
SEVENTEENTH: In the event that my daughter [-----] shall not survive me for a period of thirty (30) days, then all of
the share of my estate which was to have passed to her had she so survived me I give, devise and bequeath, to my
daughter, [-----] .
EIGHTEENTH: I hereby nominate and appoint my wife, [-----] , as Executrix of my will and I direct that she be
permitted to qualify as such in any jurisdiction without bond or other security. In the event that she shall fail to qualify
or be unable or unwilling to so serve, I nominate and appoint my daughter, [-----] , also to be permitted to act in any
jurisdiction without bond or security.
NINETEENTH: I hereby nominate and appoint my daughter [-----] as Trustee of the Trust for the use and benefit of
[-----] established hereunder and I direct that she be permitted to qualify as such in any jurisdiction without bond or
other security.
TWENTIETH: I authorize my Executor and my Trustees, including any substitute or successor personal representative
or Trustee, in their discretion, with respect to all property, real and personal, at the time forming any party of my estate
or of the trust created hereunder, without limitation by reason of enumeration and in addition to powers conferred by
Section 11-1.1 of the Estates Powers and Trust Law and other law to:
1. Retain any or all property owned by me at my death; acquire by purchase or other wise, and retain, temporarily or
permanently, any kind of realty and personally, including stocks and unsecured obligations, undivided interests,
interests in investment trust, mutual funds, discretionary common trust funds, leases, and property which is outside my
domicile, all without diversification as to kind or amount and without being limited to investments authorized by law
for trust funds, and hold funds unnerves for temporary periods, or deposit any moneys in one or more savings or other
banks, including the fiduciary or any owned by or affiliated with it, in any form of account;
2. Render liquid my estate or any trust estate in whole or in part at any times or from time to time, and hold the
proceeds in cash or in readily marketable securities for such temporary periods as by Executor or Trustee may deem
advisable;
3. Sell, exchange or otherwise dispose of realty and personally, publicly or privately, wholly or partly on credit or for
any consideration including stacks, bonds at other corporate obligations and grant options for the purchase, exchange or
other disposition of any such property.
4. Make distribution, in cash or in kind, or partly in each, including undivided interests, even though shares be
composed differently, and allocate particular assets or portions thereof to any one more of the beneficiaries hereunder;
5. Delegate discretionary powers to agents, remunerate them, and pay their expenses; employ and pay the
compensation of accountants, custodians, legal and investment counsel as needed;
6. Borrow money and pledge or mortgage any property for any purpose.
7. Manage, insure against fire or other risk, retain, repair, improve, alter, subdivide, dedicate public use or lease real
property, or grant easements with respect thereto, for periods to begin presently or in the future, without regard to
statutory restrictions on leasing and even though any such period may extend beyond the term of the trust;
8. Abandon, in any way, property which it determines to be not worth protecting.
Page 56
NY CLS EPTL § 3-2.1
9. Pay all expenses, costs, fees and other charges incurred in connection with the preservation and protection of all
tangible property.
10. Execute and deliver any and all instruments in writing which it may deem advisable to carry out any of the
foregoing powers. No party to any such instrument in writing shall be obligated to inquire into its validity.
11. So long as a corporate fiduciary shall be acting hereunder, such fiduciary shall have the custody and possession
of trust property, including property held for minors under a power to manage property during minority.
12. The fiduciaries named herein shall be entitled to commissions as authorized by law and as to the appropriate
court shall seem just and proper; provided, however, that if I shall enter into a lawful agreement with any such fiduciary
establishing terms for compensation, then the terms of such agreement shall govern.
13. With regard to all policies of insurance on my life which designate any Trustee hereunder as beneficiary, I
authorize and empower my Trustees:
a. to execute and deliver receipts and other instruments and to take such action as may be appropriate to obtain
possession and control of such policies;
b. to execute and file proofs of claim required to collect the proceeds thereof and the receipt of My Trustees, or
either of them, shall constitute full acquaintance to insure companies for all proceeds so paid; provided, however, that
my Trustees shall be under no obligation to institute legal proceedings for the collection of proceeds of any policy
unless and until they shall be indemnified to their satisfaction of all costs and expenses, including attorney's fees;
c. to elect, in their discretion, any optional modes of settlement available to them under said policies;
d. to receive insurance proceeds and to administer and distribute the same as principal in accordance with the
dispositive provisions of this will;
e. to use the proceeds of insurance policies in the purchase from my estate of such assets as the Trustees deem
advisable, without being limited to assets authorized by law for the investment of trust funds.
TWENTY-FIRST: I hereby revoke and withdraw any gift, devise or bequest to any person under this will or as a matter
of law who shall, in any manner, contest the validity of this will in any judicial proceeding.
IN WITNESS WHEREOF, I have set my hand and seal this ( [---] ) [---] day of [-----] , 19 [--] , at [-----] , New York.
[----------] [Signature, with name printed below]
ATTESTATION
The foregoing instrument, consisting of this and nine preceding typewritten pages, was signed, published and declared
by [-----] , the testator, to be his last will and testament, in our presence, and in the presence of each other, have
hereunto subscribed our names as witnesses, this [---] day of [-----] , 19 [--] , at [-----] , New York.
[----------] residing at
[----------] residing at
Form 2
Last Will and Testament with Trust for Children; Waiver of Right to Election
LAST WILL AND TESTAMENT
OF
[-----]
I, [-----] , residing at [-----] Road, [-----] , in the County of [-----] and the State of New York, being of sound mind and
memory, do make, publish and declare this to be my Last Will and Testament, and do intend by this Will to dispose of
all property which, at my death, I own or have the general or special power to appoint, in the following manner, that is
to say:
Page 57
NY CLS EPTL § 3-2.1
FIRST: I hereby revoke all wills and codicils by me heretofore made.
SECOND: I direct that all my just debts, funeral expenses, expenses of my last illnesses and expenses in connection
with the administration of my estate, as well as all income taxes and/or inheritance and estate taxes remaining due
following my death, be paid as soon after my death as practicable.
THIRD: I give $ [---] to my spouse, [-----] , if she shall survive me.
FOURTH: I give and bequeath any of my tangible personal property (exclusive of securities, bank books, legal
tender, and other items representing ownership of intangible personal property) which I [-----] own at the time of my
death, to my children, [-----] and [-----] , or the survivor thereof, said property, to be divided between them as agreed by
them and my executors.
NOTWITHSTANDING THE FOREGOING, I direct that any furniture, art work, or other tangible personal property
which I brought to the household created by my marriage to [-----] , shall, if she survives me, remain with her for her
own use during her life, without bond. Upon her death her executors shall turn such property over to my children to be
distributed as provided herein, to the extent such property remains in her possession at her death.
FIFTH: All the rest, residue and remainder of my estate, consisting of both real and personal property and including
the proceeds of all insurance policies insuring my life, owned by me and which I have made payable to my estate or the
trust or trusts created by me by This Will, of whatsoever nature and wheresoever situate, including such property
acquired by me after execution of this Will, I give, devise and bequeath in trust, as follows:
1. 10% of the trust shall be distributed outright to my daughter, [-----] , within two years following the date of my
death, at a time or in installments at times to be determined in the hill discretion of my TRUSTEE or TRUSTEES, other
than [-----] , said distributions to include the income earned on such portion of my trust until it is so distributed.
2. The remaining 90% of The trust shall be held and distributed as follows:
a. The income [-----] , in the discretion of my TRUSTEE or TRUSTEES other than [-----] , be distributed to my
son, [-----] , monthly.
b. If further funds are needed for the health, education, support or special needs of my son [-----] , who is disabled,
the TRUSTEE or TRUSTEES [-----] , within their sole discretion, may apply any portion of the corpus and any
otherwise undistributed income of such trust for the benefit of [-----] , from time to time.
c. If funds are needed for the health, or education, support or special needs of [-----] , the TRUSTEE or
TRUSTEES [-----] , within their sole discretion, apply any portion of the corpus and income of such trust for the benefit
of [-----] , from time to time, so long as said TRUSTEE or TRUSTEES have determined, in their sole discretion, that
The current and expected future needs of [-----] can still be satisfied from this trust and/or otherwise, and so long as
such distributions for [-----] are, if [-----] is then a TRUSTEE, approved by the other TRUSTEE or TRUSTEES duly
appointed as hereinafter provided.
d. Upon the death of [-----] , the trust shall terminate and the entire remaining corpus shall be distributed outright to
[-----] If [-----] shall not then be living, the trust shall continue for the benefit of descendants of [-----] and/or [-----] , per
stirpes, whether or not born before my death, until distributions are made to each such descendant at their respective
attainments of the age of twenty-one.
If [-----] is not survived by [-----] or descendants of [-----] or of [-----] , the corpus shall be distributed to my wife
[-----] 's son [-----] . If [-----] shall not then be living, it shall be distributed to my wife's daughter [-----] , if [-----] shall
then be living; otherwise the corpus shall be distributed to my wife's oldest child then living; otherwise to [-----] TRUST
COMPANY as trustee of a trust to be established with the approval of a court then having jurisdiction over the trust
created under this my Will prior to termination under this provision.
Page 58
NY CLS EPTL § 3-2.1
e. It is my intention that no part of the income or principal of any trust created hereunder shall be used to supplant
or replace public assistance benefits of any federal, state, or locally administered agency which has a legal responsibility
to serve persons with disabilities which are the same or similar to the disabilities of any beneficiary hereunder, whether
or not existing at the time of my death.
If a beneficiary is receiving governmental assistance, The TRUSTEE or TRUSTEES [-----] pay to, or for the benefit
of, such beneficiary income or principal to supplement such governmental assistance and contribute to and make such
beneficiary's life more pleasant and comfortable. Such payments shall be made for, but not limited to, vacation and
recreational trips, expenses for a traveling companion if needed, transportation expenses, entertainment costs, and
sundries.
In the event that a court of competent jurisdiction or the most senior ruling office of a governmental agency rules that
a beneficiary is ineligible to receive governmental assistance benefits to which such beneficiary would otherwise be
entitled but for this trust and for which application has been made or is intended to be made, or if the TRUSTEE or
TRUSTEES, in his or their sole discretion, determines or determine that, notwithstanding any other provisions set forth
herein, a trust created hereunder [-----] be subject to garnishment, attachment, execution or bankruptcy proceedings by a
creditor of a beneficiary of such trust or by any agency or subdivision of a federal, state or local government, then the
TRUSTEE or TRUSTEES shall terminate such trust and distribute the remaining principal and income, including
accrued income, to [-----] , if living; otherwise to [-----] , if then living; otherwise to the oldest then surviving
descendant of myself, whether or not living at the time of my death; otherwise to [-----] , if then living; otherwise the
corpus shall be distributed to the oldest child of [-----] , then living; otherwise to [-----] TRUST COMPANY as trustee
of a trust to be established with the approval of a court then having jurisdiction over the trust created under this my Will
prior to termination under this provision.
In determining whether the existence of a trust hereunder for the benefit of such beneficiary has the effect of
rendering such beneficiary ineligible to receive any governmental assistance benefits to which such beneficiary would
otherwise be entitled, the TRUSTEE or TRUSTEES are hereby granted full and complete discretion to initiate
administrative and/or judicial proceedings for the purpose of determining eligibility, and all costs related thereto,
including reasonable attorney's fees, shall be a proper charge to the beneficiary's trust estate.
SIXTH: I hereby appoint [-----] , [-----] , and [-----] TRUST COMPANY of [-----] , New York as Executors of this,
my Last Will and Testament, without bond or any other form of security required of any of them. The EXECUTORS
shall have frill power and authority to collect the proceeds of policies of insurance on my life, and to liquidate and
gather other assets and they shall also have frill power and authority to sell and convey, lease or mortgage real estate.
My EXECUTORS, EXECUTOR, TRUSTEES and/or TRUSTEE [-----] allow my disabled son, [-----] , to continue to
live in premises I am providing for him, by lease or otherwise at the time of my death, and [-----] extend or renew any
such lease or replacement leases, from time to time, at a rental price they deem reasonable in their sole discretion, and
any of my EXECUTORS, EXECUTOR, TRUSTEES, and/or TRUSTEE [-----] continue to be lessee, all in their sole
discretion.
SEVENTH: In the event that either [-----] or [-----] do not serve as EXECUTOR for any reason and at any time, the
one that does continue to serve will remain as co-Executor with [-----] TRUST COMPANY. If neither [-----] or [-----]
are serving then [-----] TRUST COMPANY shall continue as sole Executor.
EIGHTH: I hereby appoint my daughter [-----] and [-----] TRUST COMPANY to be Trustees of The trust created
under Article FIFTH. In The event that [-----] does not serve as Trustee for any reason and at any time, I appoint [-----]
to serve in her stead. Should neither [-----] or [-----] serve as Trustee, [-----] TRUST COMPANY shall serve as sole
Trustee.
NINTH: I confer my EXECUTORS, EXECUTOR, TRUSTEES, and TRUSTEE, with respect to the management
and administration of any property all of the powers conferred by the laws of the State of New York in effect at my
death, and, in addition thereto, the following discretionary powers without limitation by reason of specification:
Page 59
NY CLS EPTL § 3-2.1
1. To retain any property; to acquire by purchase or otherwise any kind of property, real and personal, including
common stocks, without being limited to investments authorized for trust hinds and without diversification as to kind or
amount
2. To sell or otherwise dispose of property, real and personal, at private or public sale, for consideration and upon
terms, including credit, as my Executors or Trustees shall deem advisable.
3. To manage and lease real property for periods beginning presently or in the future, without regard to statutory
restrictions on leasing.
4. To abandon, in any way and for any reason, any property whether or not owned by me at the time of my death
without court order; I exonerate my Executors and Trustees from any liability therefor.
5. To deposit hinds in the savings department of any bank or lending institution without limitation as to time or
amount, including [-----] TRUST COMPANY.
6. To borrow money from any source including any EXECUTORS or TRUSTEES and to pledge or mortgage any
property for any purpose.
7. To distribute principal in money or kind, real or personal, or partly in each, including undivided interests, even
though shares be composed differently.
8. To delegate powers to agents or others to the extent permitted by law and to pay them for services and reimburse
them for expenses, employ and pay the compensation of accountants, custodians, legal and investment counsel, at the
expense of the trust or estate.
TENTH: Prior to my marriage to [-----] , we entered into an prenuptial agreement wherein she and I respectively
waived all statutory rights, including the right to election under EPTL 5-1.1-A, and interest as surviving spouses that
either of us might have had with respect to the Will or property of the other.
ELEVENTH: If any beneficiary hereunder and I shall die under such circumstances that the order of their deaths
cannot be established by proof, it shall be conclusively presumed that I survived such beneficiary.
TWELFTH: If any beneficiary under this Will, in any manner, directly or indirectly, contests this Will or any of its
provisions, any share or interest in my estate otherwise given by this Will to the contesting beneficiary is revoked and
shall be disposed of in the same manner provided herein as if the contesting beneficiary had predeceased me.
THIRTEENTH: Any property failing to pass tinder ARTICLES THIRD and/or FOURTH because any beneficiary or
beneficiaries fail to survive me shall instead pass under the terms of ARTICLE FIFTH except that the items described in
ARTICLE FOURTH need not be held in trust but [-----] be distributed outright to the individual or individuals
described in ARTICLE FIFTH, in the discretion of my EXECUTOR or EXECUTORS.
FOURTEENTH: Where the sense of this instrument requires, words of the singular number shall be construed to be
plural and vice versa, and words of the masculine gender shall be construed to be feminine and vice versa.
FIFTEENTH: I hereby direct that no extraordinary efforts be made to sustain my life.
SIXTEENTH: I hereby direct that decisions regarding my funeral and burial be made by [-----] If [-----] does not
survive me or does not make such decisions such decisions are to be made by acting with such advice and counsel as
may be obtained from [-----] , [-----] , and the children of [-----] other than [-----] .
IN WITNESS WHEREOF I have hereunto subscribed my name this [---] day of [-----] , 19 [--] .
[----------] [Signature, with name printed below] Testator
We whose names are hereunto subscribed, DO CERTIFY that on the [---] day of [-----] , 19 [--] , the testator above
named, subscribed his name to this instrument in our presence and in the presence of each of us, and at the same time, in
Page 60
NY CLS EPTL § 3-2.1
our presence and hearing, declared the same to be his Last Will and Testament, and requested us, and each of us, to sign
our names thereto as witnesses to the execution thereof, which we hereby do in the presence of the testator, on the day
of the date of the said Will, and write opposite our names our respective places of residence:
[set forth]
Form 3
Last Will and Testament-Large Estate-Provisions for Multiple Trusts and Foundations *
* This is the Will of Jacqueline Kennedy Onassis, the former wife of President John Fitzgerald Kennedy.
The names herein have been deleted to protect the privacy of the beneficiaries.
I, [-----] , of the City, County and State of New York, do make, publish and declare this to be my Last Will and
Testament, hereby revoking all wills and codicils at any time heretofore made by me.
FIRST: A. I give and bequeath to my friend [-----] , if she survives me, in appreciation of her designing the Rose
Garden in the White House, my Indian miniature "Lovers watching rain clouds," Kangra, about 1780, if owned by me at
the time of my death, and my large Indian miniature with giltwood frame, "Gardens of the Palace of the Rajh, " a
panoramic view of a pink wailed garden blooming with orange flowers, with the Rajh being entertained in a pavilion by
musicians and dancers, if owned by me at the time of my death.
B. I give and bequeath to my friend [-----] , if he survives me, my Greek alabaster head of a woman if owned by me
at the time of my death.
C. I give and bequeath to my friend [-----] , if he survives me, my copy of John F. Kennedy's Inaugural Address
signed by Robert Frost if owned by me at the time of my death.
D. Except as hereinabove otherwise effectively bequeathed, I give and bequeath all my tangible personal property,
including, without limitation, my collection of letters, papers and documents, my personal effects, my furniture,
furnishings, rugs, pictures, books, silver, plate, linen, china, glassware, objects of art, wearing apparel, jewelry,
automobiles and their accessories, and all other household goods owned by me at the time of my death to my children
who survive me, to be divided between them by my Executors, in the exercise of sole and absolute discretion, in as
nearly equal portions as may be practicable, having due regard for the personal preferences of my children.
I authorize and empower my children, within a period of nine (9) months from the date of my death, to renounce
and disclaim all interest in any part or all of the tangible personal property bequeathed to them pursuant to this
Paragraph D of Article FIRST. Any such disclaimer shall be by instrument in writing, duly executed and filed in the
court in which this Will has been admitted to original probate.
E. Any interests in my tangible personal property which are disclaimed by my children shall be disposed of as
follows:
1. I give and bequeath such items of said tangible personal property and interests therein which relate to the life
and work of my late husband, John F. Kennedy, to JOHN FITZGERALD KENNEDY LIBRARY INCORPORATED,
Boston, Massachusetts, or if said library shall not be a qualified charitable beneficiary, as defined in Paragraph A of
Article SECOND hereof, at the time of my death, to such one or more qualified charitable beneficiaries with similar
purposes as my Executors, in the exercise of sole and absolute discretion, shall select.
2. I direct that the balance of said tangible personal property shall be sold and the net proceeds of sale shah be
added to my residuary estate, thereafter to be held, administered and disposed of as a part thereof.
F. I give and bequeath all copyright interests owned by me at the time of my death in my personal papers, letters or
other writings by me, including any royalty or other rights with respect thereto, to my children who survive me, in equal
shares. I request, but do not direct, my children to respect my wish for privacy with respect to such papers, letters and
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writings and, consistent with that wish, to take whatever action is warranted to prevent the display, publication or
distribution, in whole or in part, of these papers, letters and writings.
SECOND: A. I have made no provision in this my Will for my sister, [-----] , for whom I have great affection,
because I have already done so during my lifetime. I do wish, however, to remember her children and, thus, I direct my
Executors to set aside the amount of Five Hundred Thousand Dollars ($ 500,000) for each child surviving me of my
sister, [-----] , and I give and bequeath the sum so set aside to the Trustees hereinafter named, IN TRUST,
NEVERTHELESS, to hold the same, and to manage, invest and reinvest the same, to collect the income thereof and to
dispose of the net income and principal for the following uses and purposes and subject to the following terms and
conditions:
1. Payment of Annuity Amount. The Trustees shall hold and manage the trust property for a term (the "trust term")
which shall commence with the date of my death and shall end on the tenth (10th) anniversary thereof. At the end of
each taxable year of the trust during the trust term (other than any short taxable year thereof for which specific
provisions are hereinafter made), the Trustees shall pay over to such organization or organizations, to be selected by the
Trustees, in the exercise of sole and absolute discretion, and only to such organization or organizations as are described
in and satisfy the requirements of both of sections 170(c) and 2055(a) of the Internal Revenue Code of 1986, as
amended (hereinafter sometimes referred to as the "Code"), at the time any such payment or payments to such
organization or organizations are made (such organization or organizations shall herein be referred to collectively as the
"qualified charitable beneficiaries") in such amounts or proportions, equal or unequal, as the Trustees, in the exercise of
sole and absolute discretion, shall determine, such amount or amounts as shall, in the aggregate, equal ten percent (10%)
of the initial net fair market value of the trust assets as finally determined for federal estate tax purposes. Such aggregate
amount shall hereinafter be referred to as the "annuity amount."
The annuity amount shall be paid first from the ordinary taxable income of the trust (including short term capital
gains) which is not unrelated business income and, to the extent not so satisfied, the annuity amount shall be paid from
the long term capital gains, the unrelated business income, the tax exempt income and finally out of the principal of the
trust, in that order. In any taxable year of the trust in which the net income exceeds the annuity amount, the excess, at
the end of such taxable year, shall be added to trust principal and thereafter shall be held, administered and disposed of
as a part thereof. Should the initial net fair market value of the assets comprising the trust, and hence the annuity
amount, be incorrectly determined, then within a reasonable period after the value of such assets is finally determined
for federal tax purposes, the Trustees shall pay over to the qualified charitable beneficiaries, in the case of an
undervaluation, or, in the case of an over valuation, shall receive from such beneficiaries to which amounts from the
trust were paid, in proportion to the payments made to each, an aggregate amount equal to the difference between the
annuity amount properly payable and the annuity amount actually paid during such taxable year.
2. Distribution at End of Trust Term. Upon the expiration of the trust term, the trust created under this Paragraph A
shall terminate, and the Trustees shall thereupon transfer, convey and pay over the trust assets, as they are then
constituted (other than any amount due to the qualified charitable beneficiaries), to the then living descendants of my
sister, [-----] , per stirpes.
3. Proration of Annuity Amount. To determine the proper aggregate amount payable from the trust to the qualified
charitable beneficiaries in any short taxable year of the trust's existence, the Trustees shall prorate the annuity amount,
on a daily basis, in accordance with the applicable provisions of Treas. Dept. Reg. § 1.664-2.
4. Deferral Provision. The obligation to pay the annuity amount to the qualified charitable beneficiaries shall
commence with the date of my death, but payment of the annuity amount may be deferred from the date of my death
until the end of the taxable year of the trust in which occurs the complete funding of the trust. Within a reasonable, time
after the end of the taxable year which complete funding of, the trust occurs, the Trustees shall pay to the qualified
charitable beneficiaries, in the case of an underpayment, or shall receive from the qualified charitable beneficiaries, in
the case of an overpayment, in proportion to the payments made to each, the difference between: (1) any annuity
amounts actually paid, plus interest, compounded annually, computed for any period at the rate of interest that the
Treasury Regulations under section 664 of the Code prescribe for the trust for such computation for such period, and (2)
the annuity amounts properly payable, plus interest, compounded annually, computed for any period at the rate of
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interest that the Treasury Regulations under section 664 of the Code prescribe for the trust for such computation for
such period.
5. Additional Contributions. No additional contribution shall be made to the trust after the initial contribution which
shall consist of all property passing to the trust by reason of my death.
6. Prohibited Transactions. Notwithstanding any other provision in this my Will, during the trust term, the Trustees
are expressly prohibited (a) from engaging in any act of self-dealing as defined in section 4941(d) of the Code, (b) from
retaining any excess business holdings as defined in section 4943(c) of the Code which would subject the trust to tax
under section 4943 of the Code, (c) from making any investments which would subject the trust to tax under section
4944 of the Code, and (d) from making any taxable expenditures as defined in section 4945(d) of the Code. The
Trustees shall make distributions at such time and in such manner as not to subject the trust to tax under section 4942 of
said Code.
7. Taxable Year; Code References. As used in this Paragraph A, the term "taxable year" of the trust shall mean the
calendar year and the term "initial net fair market value" of the trust assets shall mean the initial net fair market value of
those assets as the term is used in section 664(d)(1) of the Code. All references to sections of the Code and the
regulations and rulings issued thereunder in this Paragraph A shall be deemed to include future amendments to such
sections, regulation and rulings as well as Corresponding provisions of future Internal Revenue laws, regulation and
rulings.
8. Intention. It is my intention to insure that the interest committed to the qualified charitable beneficiaries by this
Paragraph A shall be deductible for income and estate tax purposes under the provision of the Code. Further, I intend
that payments" of gross income made by the Trustees to qualified charitable beneficiaries qualify as income tax
charitable deductions. Accordingly, I direct that all provisions of this Paragraph A and this my Will shall be construed
to effectuate this intention, that all provision of this Paragraph A and this my Will shall be construed, and the trust be
administered, solely in a manner consistent with sections 170(c), 642(c), and 2055 of the Code, and with regulations and
rulings which may be promulgated from time to time with respect to trusts creating charitable interests, that none of the
powers granted to the Trustees by this my Will shall be exercised in a manner as to disqualify the trust for such
deductions, and specifically, but without limiting the foregoing, that nothing in this my Will shall be construed to
restrict the Trustees from investing the trust assets in a manner which could result in the annual realization of a
reasonable amount of income or gain from the sale or disposition of trust assets. I hereby grant to my Executors and the
Trustees all the administrative powers necessary to act in compliance with the requirements of the Code, as in effect at
the time of my death and from time to time thereafter, so as to qualify the interest committed to the qualified charitable
beneficiaries hereunder for the estate and income tax charitable deductions. Should any provisions of this my Will be
inconsistent or in conflict with the sections of the Code and the regulations and rulings governing charitable lead trusts
as in effect from time to time, then such sections, regulations and rulings shall be deemed to override and supersede
such inconsistent or conflicting provisions. If such sections, regulations and ruling at any time require that instruments
creating charitable lead trusts contain provisions which are not expressly set forth in this my Will, then such provisions
shall be incorporated herein by reference and shall be deemed to be apart of this my Will to the same extent as though
they had been expressly set forth herein.
9. Trustees' Limited Power of Amendment. The Trustees shall have the power, acting alone, to amend the
provisions governing this trust contained in this my Will in any manner required for the sole purpose of ensuring that
the trust qualifies and continues to qualify as a charitable lead annuity trust.
B. I give and bequeath the amount of Two Hundred and Fifty Thousand Dollars ($ 250,000) to each child of mine
who survives me.
C. I give and bequeath to [-----] , if she survives me, the amount of Two Hundred and Fifty Thousand Dollars ($
250,000).
D. I give and bequeath to [-----] , if she survives me, the amount of One Hundred and Twenty-Five Thousand Dollars
($ 125,000).
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E. I give and bequeath to my niece [-----] , if she survives me, the amount of One Hundred Thousand Dollars ($
100,000).
F. I give and bequeath to [-----] , if she survives me, the amount of Fifty Thousand Dollars ($ 50,000).
G. I give and bequeath to [-----] , if she survives me, the amount of Twenty-Five Thousand Dollars ($ 25,000).
H. I give and bequeath to [-----] , if she survives me, the amount of Twenty-Five Thousand Dollars ($ 25,000).
I. I give and bequeath to [-----] , if he survives me, the amount of Twenty-Five Thousand Dollars ($ 25,000).
THIRD: A. I give and devise any and all interest owned by me at the time of my death in the real property located
in the City of Newport, State of Rhode Island, which I inherited from my mother, [-----] , and which is known as
"Hammersmith Farm, "including all buildings thereon and all rights and easements appurtenant thereto and all policies
of insurance relating thereto, to [-----] , if he survives me, or, if he does not survive me, to his children who survive me,
in equal shares as tenants-in-common.
B. I give and devise all real property owned by me at the time of my death and located in the Towns of Gay Head
and Chilmark, Martha's Vineyard, Massachusetts, including all buildings thereon and all rights and easements
appurtenant thereto and all policies of insurance relating thereto, to my children who survive me, in equal shares as
tenants-in-common, or, if only one of my children survive me, to such survivor, or, if none of my children survive me, I
authorize, but do not direct, my Executors to sell such real property and I direct that the net proceeds of sale together
with any such real property not so sold be added to my residuary estate to be held administered and disposed of as a part
thereof.
I authorize and empower my children, within a period of nine (9) months from the date of my death, to renounce
and disclaim all interest in any part or all of said real property devised to the pursuant to this Paragraph B of Article
THIRD. Any such disclaimer shall be by instrument in writing, duly executed and filed in the court in which this Will
has been admitted to original probate.
I direct that any such interest in my real property in Martha's Vineyard, Massachusetts which is disclaimed by my
children shall be sold, and the net proceeds of sale shall be added to my residuary estate, thereafter to be held,
administered and disposed of as a part thereof.
C. Except as hereinbefore otherwise effectively devised, give and devise all real property owned by me at the time
of my death, including all buildings thereon and all rights and easements appurtenant thereto and all policies of
insurance relating thereto, to my children who survive me, in equal shares as tenants-in-common, or, if only one of my
children survive me, to such survivor, or, if none of my children survive me, I authorize, but do not direct, my Executors
to sell any such real property and I direct that the net proceeds of sale together with any such property not so sold be
added to my residuary estate and thereafter held, administered and disposed of as a part thereof.
I authorize and empower my children, within a period of nine (9) months from the date of my death, to renounce
and disclaim all interest in any part or all of said real property devised to the pursuant to this Paragraph C of Article
THIRD. Any such disclaimer shall be by instrument in writing, duly executed and filed in the court in which this Will
has been admitted to original probate.
I direct that any such interest in my real property which is disclaimed by my children shall be sold, and the net
proceeds of sale shall be added to my residuary estate, thereafter to be held, administered and disposed of as a part
thereof.
D. I give, devise and bequeath all stock owned by me at the time of my death in any corporation which is the owner
of any building in which I have a cooperative apartment, together with any lease to such apartment and all right, title
and interest owned by me at the time of my death in and to any agreements relating to said building and the real
property on which it is located, to my children who survive me, in equal shares as tenants in common, or, if only on of
my children survive me, to such survivor, or, if none of my children survive me, I authorize, but do not direct, my
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Executors to sell any such stock and I direct that the net proceeds of sale together with any such stock not so sold be
added to my residuary estate and thereafter held, administered and disposed of as a part thereof.
I authorize and empower my children, within a period of nine (9) months from the date of my death, to renounce
and disclaim all interest in any part or all of said stock devised to them pursuant to this Paragraph D of Article THIRD.
Any such disclaimer shall be by instrument in writing, duly executed and filed in the court in which this Will has been
admitted to original probate.
I direct that any such interest in said stock which is disclaimed by my children shall be sold, and the net proceeds of
sale shall be added to my residuary estate, thereafter to be held administered and disposed of as a part thereof.
FOURTH: Under the Will of my late husband, John Fitzgerald Kennedy, a marital deduction trust was created for
my benefit over which I was accorded a general power of appointment. I hereby exercise such power of appointment
and direct that, upon my death, all property subject to such power be transferred, conveyed and paid over to my
descendants who survive me, per stirpes.
FIFTH: All the rest, residue and remainder of my property and estate, both real and personal, of whatsoever kind and
wheresoever situated, of which I shall die seized or possessed or which I shall be entitled to dispose at the time of my
death (my "residuary estate"), after the payment therefrom of the taxes directed in Article NINTH hereof to be paid
from my residuary estate (my "net residuary estate"), I give, devise and bequeath to the Trustees hereinafter named, IN
TRUST, NEVERTHELESS, to hold as THE C & J FOUNDATION (sometimes hereinafter referred to as the
"Foundation") and to manage, invest and reinvest the same, to collect he income thereof and to dispose of the net
income and principal thereof for the following uses and purposes subject to the following terms and conditions:
A. 1. Payment of Annuity Amount. The Trustees shall hold and manage the Foundation property for a primary
term which shall commence with the date of my death and shall end on the 24th anniversary thereof. (In no event,
however, shall the Foundation's primary term extend beyond a period of twenty-one (21) years after the death of the last
to die of those descendants of my former father-in-law Joseph P. Kennedy who were in being at the time of my death.)
At the end of each taxable year of the Foundation during the primary term (other than any short taxable year thereof for
which specific provisions are hereinafter made), the independent Trustees (i.e., the Trustees of the Foundation other
than any Trustee who has disclaimed any Property of my Estate which becomes a part of the Foundation) shall pay over
to such organization or organizations, to be selected by the independent Trustees, in the exercise of sole and absolute
discretion, and only to such organization or Organizations as are described in and satisfy the requirements of both of
sections 170(c) and 2055(a) of the Code, at the time any such payment or payments to such organization or
organizations are made (such organization or organizations shall herein be referred to collectively as the "qualified
charitable beneficiaries in such amounts or proportions, equal or unequal, as the independent Trustees, in the exercise of
sole and absolute discretion, shall determine, such amount or amounts as shall, in the aggregate, equal eight percent
(8%) of the initial net fair market value of the assets of the Foundation as finally determined for federal estate tax
purposes. Such aggregate amount shall hereinafter be referred to as the "annuity amount."
The annuity amount shall be paid first from the ordinary taxable income of the Foundation (including short term
capital gains) which is not unrelated business income and, to the extent not so satisfied, the annuity amount shall be paid
from the long term capital gains, the unrelated business income, the tax exempt income and finally out of the principal
of the trust, in that order. In any taxable year of the Foundation in which the net income exceeds the annuity amount, the
excess, at the end of such taxable year, shall be added to the principal of the Foundation and thereafter shall beheld,
administered and disposed of as a part thereof. Should the initial net fair market value of the assets comprising the
Foundation, and hence the annuity amount, be incorrectly determined, then within a reasonable period after the value of
such assets is finally determined for federal tax purposes, the Trustees shall pay over to the qualified charitable
beneficiaries, in the case of an undervaluation, or, in the case of an overvaluation, shall receive from such beneficiaries
to which amounts from the Foundation were paid, in proportion to the payments made to each, an aggregate amount
equal to the difference between the annuity amount properly payable and the annuity amount actually paid during such
taxable year.
I have accorded the independent Trustees sole and absolute discretion in selecting the qualified charitable
beneficiaries to receive all or any portion of the annuity amount referred to in this Paragraph A of Article FIFTH,
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NY CLS EPTL § 3-2.1
stipulating only that at the time any payment from the Foundation is made to a qualified charitable beneficiary so
selected it be an organization described in sections 170(c) and 2055(a) of the Code. It is my wish, however, that in
selecting the particular qualified charitable beneficiaries which shall be the recipients of benefits from the Foundation
the independent Trustees give preferential consideration to such eligible organization or organizations the purposes and
endeavors of which the independent Trustees feel are committed to making a significant difference in the cultural or
social betterment of mankind or the relief of human suffering. To assist the independent Trustees I authorize, but do not
direct, that they retain my close friend and confidante [-----] to assist them in the administration of the Foundation.
Should the independent Trustees deem it advisable to retain [-----] , they shall pay to her from the assets of the
Foundation reasonable compensation for the services she shall render. But such compensation shall not be charged
against the annuity amount in any full taxable year of the foundation nor against the appropriate fraction of said amount,
determined as herein provided, payable to the qualified charitable beneficiaries in any short taxable year of the
Foundation but shall rather be paid from the assets of the Foundation at large.
2. Proration of the Annuity Amount. To determine the proper aggregate amount payable from the Foundation to
the qualified charitable beneficiaries in any short taxable year of the Foundation's existence, the independent Trustees
shall prorate the annuity amount, on a daily basis, in accordance with the applicable provisions of Treas. Dept. Reg. S
1.664-2.
3. Deferral provision. The obligation to pay the annuity amount to the qualified charitable beneficiaries shall
commence with the date of my death, but payment of the annuity amount may be deferred from the date of my death
until the end of the taxable year of the Foundation in which occurs the complete funding of the Foundation. Within a
reasonable time after the end of the taxable year in which complete funding of the Foundation occurs, the independent
Trustees shall pay to the qualified charitable beneficiaries, in the case of an underpayment, or shall receive from the
qualified charitable beneficiaries, in the case of an overpayment, in proportion to the payments made to each, the
difference between (1) any annuity amounts actually paid, plus interest, compounded annually, computed for any period
at the rate of interest that the Treasury Regulations under section 664 of the Code prescribe for the Foundation for such
computation during such period, and (2) the annuity amounts properly payable, plus interest, compounded annually,
computed for any period at the rate of interest that the Treasury Regulations under section 664 of the Code prescribe for
the Foundation for such computation during such period.
4. Additional Contributions. No additional contributions shall be made to the Foundation after the initial
contribution which shall consist of all property passing to the Foundation by reason of my death.
5. Prohibited Transactions. Notwithstanding any other provision in this my Will, during the primary term, the
Trustees are expressly prohibited (a) from engaging in any act of self-dealing as defined in section 4941(d) of the Code,
(b) from retaining any excess business holdings as defined in section 4943(c)of the Code which would subject the
Foundation to tax under section 4943 of the Code, (c) from making any investments which would subject the
Foundation to tax under section 4944 of the Code, and (d)from making any taxable expenditures as defined in section
4945(d) of the Code. The Trustees shall make distributions at such time and in such manner as not to subject the
Foundation to tax under section 4942 of the Code.
6. Taxable Year: Code References. As used in this Paragraph A, the term "taxable year" of the Foundation shall
mean the calendar year and the term "initial net fair market value" of the assets of the Foundation shall mean the initial
net fair market value of those assets as the term is used in section 664(d)(1) of the Code. All references to sections of
the Code and the regulations and rulings is sued thereunder in this Paragraph A shall be deemed to include future
amendments to such sections, regulations and rulings as well as corresponding provisions of future Internal Revenue
laws, regulations and rulings.
7. Intention. It is my intention to insure that the interest committed to the qualified charitable beneficiaries by this
Paragraph A shall be deductible for income and estate tax purposes under the provisions of the Code. Further, I intend
that payments of gross income made by the independent Trustees to qualified charitable beneficiaries qualify as income
tax charitable deductions. Accordingly, I direct that all provisions of this Paragraph A and this my Will shall be
construed to effectuate this intention, that all provisions of this Paragraph A and this my Will shall be construed, and the
Foundation be administered, solely in a manner consistent with sections 170(c), 642(c), and 2055 of the Code, and with
regulations and rulings which may be promulgated from time to time with respect to trusts creating charitable interests,
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NY CLS EPTL § 3-2.1
that none of the powers granted to the Trustees by this my Will shall be exercised in a manner as to disqualify the
Foundation for such deductions, and specifically, but without limiting the foregoing, that nothing in this my Will shall
be construed to restrict the Trustees from investing the assets of the Foundation in a manner which could result in the
annual realization of a reasonable amount of income or gain from the sale or disposition of the assets of the Foundation.
I hereby grant to my Executors and the Trustees all the administrative powers necessary to act in compliance with the
requirements of the Code, as in effect at the time of my death and from time to time thereafter, so as to qualify the
interest committed to the qualified charitable beneficiaries hereunder for the estate and income tax charitable
deductions. Should any provisions of this my Will be inconsistent or in conflict with the sections of the Code and the
regulations and rulings governing charitable lead trusts as in effect from time to time, then such sections, regulations
and rulings shall be deemed to override and supersede such inconsistent or conflicting provisions. If such sections,
regulations and rulings at any time require that instruments creating charitable lead trusts contain provisions which are
not expressly set forth in this my Will, then such provisions shall be incorporated herein by reference and shall be
deemed to be a part of this my Will to the same extent as though they had been expressly set forth herein.
8. Trustees' Limited Power of Amendment. The Trustees shall have the power, acting alone, to amend the
provisions governing this Foundation contained in this my Will in any manner required for the sole purpose of ensuring
that the Foundation qualifies and continues to qualify as a charitable lead annuity trust.
B. Upon the expiration of the Foundation's primary term the assets of the Foundation (other than any amount due to
the qualified charitable beneficiaries) shall be disposed of in the following manner:
1. If no descendant of any child of mine is then living, the assets of the Foundation shall be transferred, conveyed
and paid over as follows: (a) one-half (1/2) thereof (or the entire amount thereof if neither my sister, [-----] , nor any
descendant of hers is then living) to the then living descendants of my cousin [-----] , per stirpes; and (b) the other
one-half (1/2) thereof (or the entire amount thereof if no descendant of my cousin [-----] is then living) to the then living
descendants of my sister, [-----] , per stirpes, or, if no such descendant of hers is then living, to my said sister, if she
shall then be living.
2. If one or more descendants of any child of mine is then living but no such descendant was in being at the time of
my death, the assets of the Foundation shall be transferred, conveyed and paid over as follows: (a) one-half (1/2) thereof
(or the entire amount if no descendant of my son, [-----] , is then living) to the then living descendants of my daughter,
[-----] , per stirpes; and (b) one-half (1/2) thereof (or the entire amount if no descendant of my daughter, [-----] , is then
living) to the then living descendants of my son, [-----] , per stirpes.
3. If any descendant of any child of mine is then living and if at least one of those then living descendants was in
being at the time of my death, the assets of the Foundation shall be divided into a sufficient number of equal shares so
that there shall be set aside one (1) such share for the collective descendants who are then living of my daughter, [-----] ,
if any such descendant is then living, and one (1) such share for the collective descendants who are then living of my
son, [-----] , if any such descendant is then living, such shares to be disposed of as follows: Each such share shall be
transferred, conveyed and paid over to the Trustees hereinafter named to be held in separate trust for a secondary trust
term for the benefit of the descendants living from time to time of the child of mine for whose benefit the share has been
set aside (such descendants shall hereinafter be referred to as the "beneficiaries"). The secondary term for any particular
trust created hereunder shall terminate upon the death of the last to die of the beneficiaries, except that the secondary
terms of all trusts created pursuant to this subparagraph 3 shall in all events terminate simultaneously no later than
twenty-one (21) years after the death of the last to die of the descendants of my former father-in-law Joseph P. Kennedy
who were in being at the time of my death. The Trustees shall manage, invest and reinvest the principal of each trust
created hereunder, shall collect the income thereof and shall pay over or apply the net income, to such extent and at such
time or times as the independent Trustees (i.e., the Trustees of each particular trust created hereunder other than any
Trustee who is also a beneficiary of that trust or of any other trust hereunder and other than any Trustee who has
disclaimed any property of my Estate which becomes a part of this trust), in the exercise of sole and absolute discretion,
deem advisable, to or for the use of such one or more of the beneficiaries, as the independent Trustees, in the exercise of
sole and absolute discretion, determine. Any net income not so paid over or applied shall be accumulated and added to
the principal of the trust at least annually and thereafter shall be held, administered and disposed of as a part thereof. I
authorize and empower the independent Trustees of each trust created hereunder at any time and from time to time to
pay over to any one or more of the beneficiaries, or to apply for his, her or their benefit, out of the principal of such
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trust, such amount or amounts, including the whole thereof, as the independent Trustees, in the exercise of sole and
absolute discretion, deem advisable. Each trust established under this subparagraph 3 shall terminate upon the death of
the last to die of the beneficiaries thereof, and, notwithstanding the foregoing, each trust established under this
subparagraph 3 shall terminate no later than twenty-one (21) years after the death of the last to die of the descendants of
my former father-in-law Joseph P. Kennedy who were in being at the time of my death.
The principal of any trust created hereunder which has terminated by reason of the death of the last to die of the
beneficiaries thereof, as such principal is then constituted, shall be transferred, conveyed and paid over to the Trustees
of the other trust or trusts created hereunder, if any such trust is still in existence, to be held, administered and disposed
of as a part thereof. If no other trust created hereunder is then in existence upon the occurrence of such termination, the
principal of the last trust created hereunder to terminate, as then constituted, shall be transferred, conveyed and paid
over as follows:
(a) If any descendant of any child of mine is then living, (i) one-half (1/2) thereof (or the entire amount if no
descendant of my son, [-----] , is then living) to the then living descendants of my daughter, [-----] , per stirpes; and (ii)
one-half (1/2) thereof (or the entire amount if no descendant of my daughter, [-----] , is then living) to the then living
descendants of my son, [-----] , per stirpes.
(b) If no descendant of any child of mine is then living, (I) one-half (1/2) thereof (or the entire amount thereof if
neither my sister, [-----] , nor any descendant of hers is then living) to the then living descendants of my cousin [-----] ,
per stirpes; and (II) the other one-half (1/2) thereof (or the entire amount thereof if no descendant of my cousin [-----] is
then living) to the then living Descendants of my sister, [-----] , per stirpes, or, if no such descendant of hers is then
living, to my said sister, if she shall then be living.
Should any trust created hereunder terminate by reason of expiration of a period of twenty-one (21) years after the
death of the last to die of the descendants of my former father-in-law Joseph. Kennedy in being at the time of my death,
the principal of each such terminating trust, as then constituted, shall be transferred, conveyed and paid over to the then
living beneficiaries of that trust in equal shares.
SIXTH: A. Unless it shall not be permissible under the applicable rules of law to create a trust of the property
described in this Paragraph A, if any individual under the age of twenty-one (21) years becomes entitled to any property
from my estate upon my death or any property from any trust created hereunder upon the termination thereof, such
property shall be held by, and I give, devise and bequeath the same to, the Trustees hereinafter named, IN TRUST,
NEVERTHELESS, for the following uses and purposes: To manage, invest and reinvest, the same, to collect the income
and to apply the net income and principal to such extent (including the whole thereof) for such individual's general use
and at such time or times as the independent Trustees (i.e., the Trustees of each particular trust created hereunder other
than any Trustee who is also a beneficiary of that trust or of any other trust hereunder and other than any Trustee who
has disclaimed any property of my Estate which becomes a part of this trust), in the exercise of sole and absolute
discretion, shall determine, until such individual reaches the age of twenty-one (21) years, and thereupon to transfer,
convey and pay over the principal of the trust, as it is then constituted, to such individual. Any net income not so applied
shall be accumulated and added to the principal of the trust at least annually arid thereafter shall be held, administered
and disposed of as a part thereof. Upon the death of such individual before reaching the age of twenty-one (21) years,
the Trustees shall transfer, convey and pay over the principal of the trust, as it is then constituted, to such individual's
executors or administrators.
If my Executors or the independent Trustees, as the case may be, in the exercise of sole and absolute discretion,
determine at any time not to transfer in trust or not to continue to hold in trust any part or all of such property, as the
case may be, they shall have full power and authority to transfer and pay over such property, or any part thereof,
without bond, to such individual, if an adult under the law of the state of his or her domicile at the time of such
payment, or to his or her parent, the guardian of his or her person or property, or to a custodian for such individual
under any Uniform Gifts to Minors Act pursuant to which a custodian is acting or may be appointed.
The receipt of such individual, if an adult, or the parent, the guardian or custodian to whom any principal or income
is transferred and paid over pursuant to any of the above provisions shall be a full discharge to my Executors or the
Trustees, as the case may be, from all liability with respect thereto.
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B. If it shall not be permissible under the applicable rules of law to create a trust of the property hereinabove
described in Paragraph A, and if such individual is a minor as hereinafter defined, in that event such property shall vest
absolutely in such minor, subject to the following: I hereby authorize and empower the Trustees hereinafter named to
retain such minor's property without bond, as donees of a power in trust for the following uses and purposes: To
manage, invest and reinvest the same, to collect the income and to apply the net income and principal to such extent
(including the whole thereof) for such minor's general use and at such time or times as the independent Trustees, in the
exercise of sole and absolute discretion, shall determine, until such minor reaches the age of majority, and thereupon to
transfer, convey and pay over the property, as it is then constituted, to such minor. Any net income not so applied shall
be accumulated and added to principal at least annually and thereafter shall be held, administered and disposed of as a
part thereof. Upon the death of such minor before reaching his or her majority, the Trustees shall transfer, convey and
pay over the property, as it is then constituted, to such minor's executors or administrators.
If my Executors or the independent Trustees, as the case may be, in the exercise of sole and absolute discretion,
determine at any time not to transfer to the Trustees as such donees of a power in trust or not to continue to hold any
part or all of such property as hereinabove provided, as the case may be, they shall have full power and authority to
transfer and pay over such property or any part thereof, without bond, to such minor's parent or to the guardian of such
minor's person or property, or to a custodian for such minor under any Uniform Gift to Minors Act pursuant to which a
custodian is acting or may be appointed.
The receipt of the parent, guardian or custodian to whom any property is transferred and paid over pursuant to any
of the above provisions shall be a full discharge to my Executors or the Trustees, as the case may be, from all liability
with respect thereto.
As compensation for their services under this Paragraph B the Trustees shall be entitled to commissions at the rates
and in the manner allowed to trustees of testamentary trusts under the laws of the State of New York in effect from time
to time.
In administering any property pursuant to this Paragraph B, the Trustees shall have all of the powers conferred upon
them under this Will.
The term "minor" as used in this Paragraph B shall be deemed to refer to an individual under the age at which such
individual may execute a binding contract to dispose of real or personal property under the laws of the State of his or
her domicile.
SEVENTH: Any application of the net income or principal of any trust herein created may be by the payment of bills
rendered for the support, maintenance, education or general welfare of the beneficiary for whose use the application is
to be made or by the payment of net income or principal to such person or persons, including, in the case of a minor, his
or her parent, the guardian of his or her person or property or the person with whom such minor resides, as the Trustees,
in the exercise of sole and absolute discretion, deem appropriate. Any such payment or application may be made
without bond, without intervention of any guardian or committee, without order of court, without regard to the duty of
any person to support the beneficiary and without regard to any other funds which may be available for the purpose.
The receipt of the person or persons to whom any net income or principal is paid pursuant to this Article shall be a full
discharge to the Trustees from all liability with respect thereto.
EIGHTH: In the event that any beneficiary or beneficiaries hereunder upon whose survivorship any gift, legacy or
devise is conditioned and the person or persons, including myself, upon whose prior death such gift, legacy or devise
takes effect shall die simultaneously or under such circumstances as to render it impossible or difficult to determine who
survived the other, I hereby declare to be my will that such beneficiary or beneficiaries shall be deemed not to have
Survived but to have predeceased such person or persons, and that this my Will and any and all of its provisions shall be
construed on such assumption and basis.
NINTH: A. All estate, inheritance, legacy, success ion or transfer or other death taxes (including any interest and
penalties thereon) imposed by any domestic or foreign taxing authority with respect to all property owned by me at the
time of my death and passing under this my Will (other than any generation-skipping transfer tax imposed by Chapter
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13 of the Code, or any successor section or statute of like import, and any comparable tax imposed by any other taxing
authority) shall be paid without apportionment out of my residuary estate and without apportionment within my
residuary estate and with no right of reimbursement from any recipient of any such property. By directing payment of
the aforesaid taxes from my residuary estate only in so far s those taxes are generated by property passing under this my
Will, it is my express intention that the property over which I possess a general power of appointment and to which I
refer in Article FOURTH of this my Will shall bear its own share of such taxes.
B. Should my Estate, after Payment of all of my debts and funeral expenses, the expenses of estate administration
and the taxes referred to in this Article NINTH, be insufficient to satisfy in full all of the preresiduary bequests and
devises which I make under Articles FIRST through THIRD hereof, I direct that the bequests and devises in (1)
Paragraphs A, B and C of Article FIRST, (2) Article SECOND and (3) Paragraph A of Article THIRD shall abate last
after the abatement of the bequests and devises in Paragraphs D and E of Article FIRST and Paragraphs B, C and D of
Article THIRD.
TENTH: A. My Executors may make such elections under the tax laws (including, but without limitation, any
election under Chapter 13 of the Code) as my Executors, in the exercise of sole an absolute discretion, deem advisable,
regardless of the effect thereon any of the interests under this Will, and I direct that there shall be no adjustment of such
interests by reason of any action taken by my Executors pursuant hereto.
B. My Executors may, in the exercise of sole and absolute discretion, disclaim or renounce any interest which I or
my estate may have under any other will, under any trust agreement or otherwise.
C. The determination of my Executors with respect to all elections, disclaimers and renunciations referred to in this
Article shall be final and conclusive upon all persons.
D. I authorize my Executors, in the exercise of sole and absolute discretion, to divide (whether before or after any
trust is funded and whether before or after any allocation of GST exemption under section 2631 of the Code is made)
any trust or any property used or to be used to fund or augment any trust created under this Will into two or more
fractional shares. The shares shall be held and administered by the Trustees as separate trusts, but may be managed and
invested in solido. Some of the purposes for granting this authority are to provide an inclusion ratio (within the meaning
of section 2642(a) of the Code) of zero for the separate trust receiving the fractional share to which the allocation of
GST exemption is made.
Whenever two trusts created under this Will are directed to be combined into a single trust (for example, because
property of one trust is to be added to the other trust), whether or not the trusts have different inclusion ratios with
respect to any common transferor or have different transferors for generation-skipping transfer tax purposes, the
Trustees are authorized, in the exercise of sole and absolute discretion, instead of combining said trusts, to administer
them as two separate trusts with identical terms in accordance with the provisions that would have governed the
combined trusts. However, the Trustees may manage and invest such separate trusts in solido.
The Trustees are authorized, in the exercise of sole and absolute discretion, to combine any one or more trusts with
identical terms for an identical beneficiary or beneficiaries created under this Will as a single trust. The Trustees are
also authorized, in the exercise of sole and absolute discretion, later to divide such trust as provided above in this
Paragraph. Without in any way limiting the sole and absolute discretion of the Trustees granted by this Paragraph, I
envision that the Trustees will not elect to combine two or more trusts with different inclusion ratios for
generation-skipping transfer tax purposes.
ELEVENTH: In addition to, and not by way of limitation of, the powers conferred by law upon fiduciaries, subject,
however, to the directions and prohibitions in Article FIFTH hereof, I hereby expressly grant to my Executors with
respect, to my estate and the Trustees with respect to each of the trust estates herein created, including any accumulated
income thereof, the powers hereinafter enumerated, all of such powers so conferred or granted to be exercised by them
as they may deem advisable in the exercise of sole and absolute discretion:
(1) To purchase or otherwise acquire, and to retain, whether originally a part of my estate or subsequently acquired,
any and all stocks, bonds, notes or other securities, or any variety of real or personal property, including securities of
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any corporate fiduciary, or any successor or affiliated corporation, interests in common trust funds and securities of or
other interests in investment companies and investment trusts, whether or not such investments be of the character
permissible for investments by fiduciaries; and to make or retain any such investment without regard to degree of
diversification.
(2) To sell (including to any descendant of mine), lease pledge, mortgage, transfer, exchange, convert or otherwise
dispose of, or grant options with respect to, any and all property at anytime forming a part of my estate or any trust
estate, in any manner at any time or times, for any purpose, for any price and upon any terms, credits and conditions;
and to enter into leases which extend beyond the period fixed by statute for leases made by fiduciaries and beyond the
duration of any trust.
(3) To borrow money from any lender, including any corporate fiduciary, for any purpose connected with the
protection, preservation or improvement of my estate or any trust estate, and as security to mortgage or pledge upon any
terms and conditions any real or personal property of which I may die seized or possessed or forming a part of any trust
estate.
(4) To vote in person or by general or limited proxy with respect to any shares of stock or other security; directly or
through a committee or other agent, to oppose or consent to the reorganization, consolidation, merger, dissolution or
liquidation of any corporation, or to the sale, lease, pledge or mortgage of any property by or to any such corporation;
and to make any payments and take any steps proper to obtain the benefits of any such transaction.
(5) To the extent permitted by law, to register any security in the name of a nominee with or without the addition of
words indicating that such security is held in a fiduciary capacity and to hold any security in bearer form.
(6) To complete, extend, modify or renew any loans, notes bonds, mortgages, contracts or any other obligations
which I may owe or to which I may be a party or which may be liens or charges against any of my property, or against
my estate, although I may not be liable thereon; to pay, compromise, compound, adjust, submit to arbitration, sell or
release any claims or demands of my estate or any trust against others or of others against my estate or any trust upon
any terms and conditions, including the acceptance of deeds to real property in satisfaction of bonds and mortgages; and
to make an payments in connection therewith.
(7) To make distributions in kind (including in satisfaction of pecuniary bequests) and to cause any distribution to
be composed of cash, property or undivided fractional shares in property different in kind from any other distribution
without regard to the income tax basis of the property distributed to any beneficiary or any trust.
(8) Whenever no corporate fiduciary is acting hereunder, to place all or any part of the securities which at any time
are held by my estate or any trust estate in the care and custody of any bank or trust company with no obligation while
such securities are so deposited to inspect or verify the same and with no responsibility for any loss or misapplication by
the bank or trust company; to have all stocks and registered securities placed in the name of such bank or trust company
or in the name of its nominee; to appoint such bank or trust company agent and attorney to collect, receive, receipt for
and disburse any income, and generally to perform the duties and services incident to a so-called "custodian" account;
and to allocate the charges and expenses of such bank or trust company to income or to principal or partially to income
and partially to principal.
(9) To appoint, employ and remove, at any time and from time to time, any accountants, attorneys, investment
counselors, expert advisers, agents, clerks and employees; and to fix and pay their compensation from income or
principal or partially from income and partially from principal. Nothing herein contained, however, shall be construed to
permit any person or entity to receive compensation in excess of what is reasonable, as defined for purpose of sections
4941(d)(2)(E) and 4945(d)(5) of the Code and under the laws of the State of New York, if such compensation is a
charge, directly or indirectly, against any charitable lead trust created hereunder.
(10) Whenever permitted by law, to employ a broker-dealer as custodian for all or any part of the securities at any
time held by my estate or any trust estate and to register such securities in the name of such broker-dealer.
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(11) With respect to securities in any closely-held corporation, or any interests of my estate or any trust estate in any
unincorporated business enterprises, to retain any such securities or interests and to allow any assets of my estate or any
trust estate invested in any such corporations or businesses to remain so invested for such time as may appear desirable
without liability for any such retention of any such stock, to advance money to any such corporations or businesses in
order to aid them in their operations or with the view to maintaining or increasing the value of the interest therein of my
estate or any trust estate; to provide for the management, operation and conduct of such businesses, either singly or in
conjunction with others interested therein; to engage and delegate duties and powers to any employees, managers or
other persons, without liability for any delegation except for negligence in selection; to borrow money for such
corporations or businesses, and to secure such loans by a pledge or mortgage not only of interests held in such
corporations or businesses but also of any other assets held in my estate or any trust estate; to vote any stock so as to
effect the election as an officer or director, or both, of any such corporations of any fiduciary hereunder and also to
provide for reasonable compensation to such officer or director (which compensation shall be in addition to and not in
lieu of any compensation to which such fiduciary may be entitled for acting hereunder); to enter into agreements for
voting trusts and to deposit securities with the voting trustees, to delegate duties to such trustees with all powers of an
absolute owner of such stock, to authorize such trustees to incur and pay expenses and receive compensation, and to
accept and retain any property received under such agreements; to take business risks in the management, operation,
conduct and disposition of any such corporations and business enterprises, notwithstanding that my estate or any trust
estate shall have an interest therein; to sell the securities or assets of any such corporations or businesses, or to liquidate,
dissolve or otherwise dispose of the same; and to organize, either singly or in conjunction with others, a corporation or
corporations to carry on any business enterprise, transferring assets or cash thereto for stock.
(12) To manage, insure against loss, subdivide, partition, develop, improve, mortgage, lease or otherwise deal with
any real property or interests therein which may form at any time a part of my estate or any trust estate; to satisfy and
discharge or extend the term of any mortgage thereon; to demolish, rebuild, improve, repair and make alterations from
time to time in any structures upon any such real property; to plat into lots and prepare any such real property for
building purposes; to construct and equip buildings another structures upon any such real property and to make any and
all other improvements of any kind or character whatsoever in connection with the development and improvement
thereof; to execute the necessary instruments and covenants to effectuate the foregoing powers, including the granting
of options in connection therewith.
(13) To divide any trust created under this Will into one or more Separate trusts for the benefit of one or more of the
beneficiaries of the trust (to the exclusion of the other beneficiaries) so divided, as the Trustees, in the exercise of sole
and absolute discretion, determine and to allocate to such divided trust some or all of the assets of the trust estate for any
reason including, but not limited to, enabling any such trust or trusts to qualify as an eligible shareholder of a subchapter
S corporation as described in sections 1361(c)(2)(A)(i) or 1361(d)(3) of the Code, as the case may be, or for any other
purpose.
(14) To delegate any duties or powers, discretionary or otherwise, to a co-fiduciary for such periods and upon such
terms an conditions as may be designated in a written instrument acknowledged in such form as would entitle a deed of
real property to be recorded and delivered to such co-fiduciary; and the fiduciary so delegating any duties or powers
hereunder shall have no further responsibility with respect to the exercise of such duties or powers so long as such
delegation shall remain in effect; and any such delegation shall be revocable by a similar instrument so delivered at any
time, provided however, that no duties or powers described in Paragraph J of Article TWELFTH hereof may be
delegated to a Trustee who is a beneficiary of any trust created hereunder.
(15) To manage any trust created hereunder in solido with any other trust created hereunder which has similar
terms, conditions and beneficiaries.
(16) To execute and deliver any and all instruments to carry out any of the foregoing powers, no party to any such
instrument being required to inquire into its validity or to see to the application of any money or other property paid or
delivered pursuant to the terms of any such instrument.
TWELFTH: A. I appoint [-----] and [-----] Executors of this my Last Will and Testament. If either of them should
fail to qualify or cease to act as Executor hereunder, I authorize, but do not direct, the other, in the exercise of sole and
absolute discretion, to appoint as a co-Executor such individual or such bank or trust company as he, in the exercise of
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sole and absolute discretion, shall "select. Any such appointment shall be made by an instrument in writing filed with
the clerk of the appropriate Court.
If at any time and for any reason there is only one Executor acting hereunder, I authorize, but do not direct, such
Executor to appoint such individual or such bank or trust company as such Executor, in the exercise of sole and absolute
discretion, shall select as successor Executor to act in his or her place if he or she should cease to act. Any such appoint
me shall be made by an instrument in writing filed with the clerk of the appropriate court and may be revoked by such
Executor during his or her lifetime and Succeeded by a later appointment, the last such appointment to control.
B. Should it be necessary for a represents of my estate to qualify in any jurisdiction wherein any Executor named
herein cannot or: may not desire to qualify as such, any other Executor acting hereunder shall, without giving any
Security, act as Executor in such jurisdiction and shall have therein all the rights, powers, privileges, discretions and
duties conferred or imposed upon my Executor by the provision of this my Will, or, if no Executor can or wishes to
qualify as Executor in such other jurisdiction, or, if at any time and for any reason there shall be no Executor in of office
in such other jurisdiction, I appoint as Executor therein such person or corporation as may be designate by the Executors
acting hereunder. Such Substituted Executor shall, without giving any Security, have in such other jurisdiction all the
rights, powers, privileges, discretions and duties conferred or imposed upon my Executors by the provision of this my
Will.
C. I appoint [-----] and [-----] Trustees of the trust created under Paragraph A of Article SECOND of this my Will. If
either of them should fail to qualify or cease to act as a Trustee hereunder, I authorize, but do not direct, the other, in the
exercise of sole and absolute discretion, to appoint as a co-Trustee such individual or such bank or trust, the exercise of
sole and absolute discretion; shall select. Any such appointment shall be made by an instrument in writing filed with the
clerk of the appropriate court.
If at any time and for any reason there is only one Trust acting for said trust, I authorize, but do not direct, such
Trustee to appoint such individual or such bank or trust company as such Trustee, in the exercise of sole and absolute
discretion, shall select as successor Trustee to act in his or her place if he or she should cease to act. Any such
appointment shall be made by an instrument in writing filed with the clerk of the appropriate court and may be revoked
by such Trustee during his or her lifetime and Succeeded by a later appointment, the last such appointment to control.
D. I appoint my daughter, [-----] , my son, [-----] , [-----] and [-----] Trustees of the trust created under Paragraph A
of Article FIFTH of this my Will and therein designated THE C & J FOUNDATION provided, however, that, if my
daughter and/or my son disclaims any property of my Estate which becomes part of the trust created under Paragraph A
of Article FIFTH, my daughter and/or my son who has so disclaimed shall only serve as an Administrative Trustee. An
Administrative Trustee is only authorized to take such actions as are necessary to preserve and maintain the trust
property within the meaning of Treas. Reg. § 25.2518-2(d)(2) and, accordingly, is prohibited from participating in the
exercise, or decision not to exercise, any discretion over payments, distributions, applications or accumulations of
income or principal by the Trustees, including the selection of the charitable beneficiaries of the annuity interest.
Should any one or more of the Trustees herein designated fail to qualify or cease to act as a Trustee of said
Foundation without having designated his or her successor in the manner authorized by Paragraph H of this Article, I
direct the Trustees or Trustee continuing in office to exercise that right so that there shall be a minimum of two (2)
Trustees in office for the Foundation at all times.
E. I appoint [-----] and [-----] or the survivor of them, Trustees of each trust created under subparagraph B(3) of
Article FIFTH of this my Will provided, however that, if my daughter and/or my son disclaims any property of my
Estate which becomes part of the trust created under Paragraph B(3) of Article FIFTH, my daughter and/or my son who
has so disclaimed shall only serve as an Administrative Trustee. An Administrative Trustee is only authorized to take
such actions as are necessary to preserve and maintain the trust property within the meaning of Treas. Reg. §
25.2518-2(d)(2) and, accordingly, is prohibited from participating in the exercise, or decision not to exercise, any
discretion Over payments, distributions, applications or accumulations of income or principal by the Trustees. In
addition, appoint as co-Trustee or co-Trustees of each such trust such person or persons and/or bank or trust company as
my son and daughter, or the survivor of them, shall agree upon and designate as co-Trustee or co-Trustees by an
instrument in writing to be filed with the clerk of the appropriate court. It shall not be necessary to appoint successors to
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any individual acting as a Trustee of any trust create under subparagraph B(3) of Article FIFTH hereof if and during
such time as a bank or trust company shall be acting hereunder.
F. I appoint my daughter, [-----] , and my son [-----] , Trustees of any trust created under Article SIXTH of this my
Will, and I authorize any one parent of any individual for whom any such trust is created to qualify as a co-Trustee of
such trust if he or she cares to do so provided, however, that, if my daughter and/or my son disclaims any property of
my Estate which becomes part of the trust created under Article SIXTH, my daughter and/or my son who has so
disclaimed shall only serve as an Administrative Trustee. An Administrative Trustee is only authorized to take such
actions as are necessary to preserve and maintain the trust property within the meaning of Treas. Reg. §
25.2518-2(d)(2) and, accordingly, is prohibited from participating in the exercise, or decision not to exercise, any
discretion over payments, distributions, application or accumulations of income or principal by the Trustees.
G. Any Executor or Trustee may resign from Office without leave of court at any time and for any reason by filing a
written instrument of resignation with the, clerk of the appropriate court.
H. I authorize and empower any individual acting as a Trustee of any one or more of the trusts created hereunder to
appoint any time and from time to time any individual or bank or trust company (unless a bank or trust company is then
acting as Trustee of such trust) to act as successor Trustee of any one or more of such trusts in the event that the person
so making the appointment shall cease to act as a Trustee of such trust or trusts due to his or her death or resignation. If
more than one Trustee 15 acting hereunder, and at any time or from time to time there shall be a vacancy in the office of
co-Trustee of any one or more of the trusts created hereunder due to the death or resignation of a co-Trustee and no
successor Trustee willing and able to serve shall have been appointed herein or by such co-Trustee as hereinabove
provided, then I authorize and empower the remaining individual Trustee, if any, of such trust or trusts to appoint any
individual or corporation to act as co-Trustee of such trust or trusts.
I. In the event that the only acting Trustee or Trustees of any trust created hereunder are prohibited from taking
certain actions which are necessary or appropriate, I appoint as co-Trustee such individual or bank or trust company as
shall be selected, in the exercise of sole and absolute discretion, by the then acting Trustee or Trustees. Any such
appointment shall be made by an instrument in writing filed with the clerk of the appropriate court.
J. Notwithstanding any other provision of this my Will, no Trustee who is a beneficiary of any trust created
hereunder or who is under a duty to support a beneficiary shall ever participate in (i) the exercise, or decision not to
exercise, any discretion overpayments, distributions, applications, accumulations, or uses of income or principal by the
Trustees, (ii) the exercise of discretion to allocate receipts or expenses between principal and income, or (iii) the
exercise of any general power of appointment described in sections 2041 or 2514 of the Code.
K. Except as provided by law, I direct that my Executors shall not be required to file any inventory or render any
account of my Estate and that no Executor, Trustee, or donee of a power in trust shall be required to give any bond. If,
notwithstanding the foregoing direction, any bond is required by any law, statute or rule of court, no sureties shall be
required thereon.
L. I authorize and empower the Trustees or Trustee of each trust created hereunder to transfer the trust assets to, and
to hold and administer them in, any jurisdiction in the United States and to account for the same in any court having
jurisdiction over said assets.
M. I direct that any and all powers and discretion conferred by law and by this my Will upon my Trustees including,
but not by way of limitation, the right to appoint successor and co-Trustees, may be exercised by the Trustees from time
to time qualified and acting hereunder.
N. Whenever the terms "Executors" or "Executor" and "Trustees" or "Trustee" are used in this my Will, they shall
be deemed to refer to the Executors or Executor or the Trustees or Trustee acting hereunder from time to time.
THIRTEENTH: A. A disposition in this Will to the descendants of a person per stirpes shall be deemed to require a
division into a sufficient number of equal shares to make one share for each child of such person living at the time such
disposition becomes effective and one share for each then deceased child of such person having one or more
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descendants then living, regardless of whether any child of such person is then living, with the same principle to be
applied in any required further division of a share at a more remote generation.
B. As used in this Will, the terms "child," "children," "descendant" and "descendants" are intended to include
adopted persons and the descendants of adopted persons, whether of the blood or by adoption.
FOURTEENTH: In accordance with the provisions of section 315(5) of New York's Surrogate's Court Procedure
Act, in any proceeding involving my estate or any trust estate created hereunder it shall not be necessary to, serve
process upon or to make a party to any such proceeding any person under a disability where another party to the
proceeding has the same interest as the person under a disability.
FIFTEENTH: No trust created under this my Will shall be subject to the provisions of section 11-2.1(k) of New
York's Estates, Powers and Trusts Law (the "EPTL"), nor shall the Trustees of any such trust be obliged to make any
allocation to income in respect of any property held as a part of any trust created hereunder which at any time is
underproductive within the meaning of section (k)(1) of the EPTL.
IN WITNESS WHEREOF, I, [-----] , have to this my Last Will and Testament subscribed my name and set my seal this
[---] day of [-----] in the year One Thousand Nine Hundred and [-----]
[----------] [Signature]Subscribed and sealed by the Testatrix in
the presence of us and of each of us, and
at the same time published, declared and
acknowledged by her to us to be her Last
Will and Testament, and thereupon we, at
the request of the said Testatrix, in her
presence and in the presence of each other,
have hereunto subscribed our names as witnesses
this [---] day of [-----] 19 [--] .
[----------] residing at [----------]
[----------] residing at [----------]
[----------] residing at [----------]
ATTESTING WITNESSES SHOULD READ CAREFULLY BEFORE SIGNING THIS AFFIDAVIT - NOTARY
SHOULD NOT BE A PARTY OR WITNESS
STATE OF NEW YORK)
)ss.:
COUNTY OF [-----] )
Each of the undersigned, individually and severally being duly sworn, deposes and says:
The within Will was subscribed in our presence and sight at the end thereof by [-----] , the within named Testatrix on
the [---] day of [-----] , 19 [--] , at [-----] Road, [-----] , in the State of New York.
Said Testatrix at the time of making such subscription declared the instrument so subscribed to be her Last Will and
Testament.
Each of the undersigned thereupon signed his or her name as a witness at the end of said Will at the request of said
Testatrix and in her presence and sight and in the presence and sight of each other.
Said Testatrix was, at the time of so executing said Will, over the age of is years and, in the respective opinions of
the undersigned, of sound mind, memory and understanding and not under any. restraint or in any respect incompetent
to make a will.
The Testatrix, in the respective opinions of the undersigned, could read, write and converse in the English language
and was suffering from no defect of sight, hearing or speech or from any other physical or mental impairment which
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NY CLS EPTL § 3-2.1
would affect her capacity to make a valid will. The Will was executed as a single, original instrument and was not
executed in counterparts.
Each of the undersigned was acquainted with said Testatrix at said time and makes this affidavit at her request.
Form 4
Clause Making Joint and Mutual Will Irrevocable After Death of Either Spouse
We, ----- [name of husband] and ----- [name of wife], covenant each with the other to abide by each of our wills and
by the joint and mutual will herein made, and covenant not to make any will or codicil different from this will after the
death of either of us, and agree that this, our last will and testament, cannot be changed or varied by either without the
consent in writing of the other.
Form 5
Contract for Mutual Wills
THIS AGREEMENT made this ----- day of -----, 19--, at -----, New York, by and between ----- and -----, his wife,
residing at -----, in the ----- of -----, County of -----, and State of New York, WITNESSETH
WHEREAS each of the parties hereto have children living who are the issue of former marriages of both parties,
namely, ----- of -----, New York, a son of said ----- [husband]; and ----- of -----, New York, a daughter of said ----[wife]; and WHEREAS
Said ----- [husband] and ----- [wife] have issue of their marriage, ----- [a daughter], residing at -----, New York; and
WHEREAS the said parties hereto are desirous that their property, real, personal and mixed, shall after their deaths
pass in the manner hereinafter set forth;
NOW THEREFORE for and in consideration of the mutual promises hereinafter made, it is agreed by and between
the parties hereto as follows:
(1) Each party agrees to give, devise, and bequeath to the other party all of his or her property, real, personal, and
mixed, wheresoever situate, to have and to hold absolutely and unconditionally.
(2) The survivor agrees on his or her death to give, devise, and bequeath all property, real, personal, and mixed, of
which he or she may die seized or possessed to the said -----, -----, and -----, or to the survivor of them, share and share
alike.
This agreement cannot be changed, modified or discharged orally, in whole or in part, by executory agreement.
IN WITNESS WHEREOF the parties hereto have set their hands and seals the day and year first above written.
---------- L.S.
---------- L.S.
[Acknowledgment]
Form 6
Complaint for Enforcement of Joint Will
[Title of court and matter]
Complaint
Index No. ----The plaintiffs complaining of defendants allege:
1. Upon information and belief, prior to -----, 19--, ----- and -----, both now deceased, became and were husband and
wife.
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NY CLS EPTL § 3-2.1
2. On or about the ----- day of -----, 19--, the said ----- and the said ----- made and executed a paper purporting to be
their last will, a copy of which is annexed hereto as Exhibit "A."
3. In and by the execution of said will said ----- and ----- mutually agreed each with the other and each in
consideration of the promise of the other that each would leave his property in accordance therewith.
4. The said ----- [wife] died at the City of ----- on or about the ----- day of -----, 19--, leaving her surviving her
husband -----, and ----- [state].
5. Upon information and belief, on or about -----, 19--, the aforesaid mutual and joint will of the said ----- and ----was duly admitted to probate as such upon the petition of said ----- [husband] by the Surrogate's Court of the County of
-----, and letters testamentary were duly granted thereon to the said ----- [husband].
6. Upon information and belief, the said ----- qualified as such executor, and thereafter entered upon his duties as
such, and continued as such executor until his death hereinafter mentioned.
7. Upon information and belief, the said -----, by applying and petitioning for the probate of the aforesaid will, and
causing the same to be admitted to probate, and to be established thereby as the joint and mutual will for the said ----and -----; and by accepting letters testamentary thereunder, and entering upon his duties as such executor, and accepting
the terms of said will and the benefits thereunder, became and was barred from thereafter making any new, separate, or
individual last will and testament; was unable to and lost the right to revoke, change, or modify any of the terms,
bequests, or provisions of the said joint and mutual will so admitted to probate, or make any disposition of the property
or estate, owned by him and his said deceased wife, at the time of her death, other than as provided for in the same, and
his status in and to the property so owned by them at the time was fixed and regulated, and its terms, bequests,
provisions, and obligations could not be impaired, changed, modified, revoked, or avoided by subsequent testamentary
provision or designation on the part of the survivor, who thereby became bound and obligated to carry out the terms and
conditions thereof, as therein provided and in the manner therein mentioned.
8. Upon information and belief, at the time of the death of the said -----, she and her said husband ----- owned the real
estate known as -----.
9. Upon information and belief that the real estate and buildings erected thereon known as No. ----- aforesaid was
conveyed to the said ----- and -----, his wife, by deed dated ----- 19--, and recorded in the office of ----- on ----- 19--, for
and in consideration of the sum of $ ----- and that said premises are more particularly bounded and described, in said
deed, as follows, viz: -----.
10. Upon information and belief, the aforesaid real estate is worth $ ----- over and above all charges and
encumbrances thereon.
11. Upon information and belief, at the time of the death of said -----, she and her said husband ----- were possessed
and the owners of, and had deposited in a certain bank or banks, and in their possession or invested, certain moneys,
their property, which were subject to the conditions and provisions of the aforesaid will, and were part and parcel of the
property therein mentioned, but that this plaintiff is at present unable to name the exact sum or sums, or the bank or
banks in which the same were deposited, or the number, amount, or character of the investment, but believes that the
same amounts in all to approximately $ -----.
12. Upon information and belief, the said ----- thereafter invested such moneys in various ways, at various times, but
the plaintiff is at present unable to more particularly name, describe, or designate such transactions.
13. Upon information and belief the said ----- thereafter received the rents, income, and profits of the aforesaid real
estate, and drew and received moneys on deposit in banks, or invested and received moneys belonging to the said ----and -----, which were subject to the conditions and terms of their mutual will aforesaid.
14. Upon information and belief the said ----- thereafter and on or about the ----- day of -----, 19--, died at the City of
-----, County of -----, leaving a last will and testament bearing date -----, 19--, a copy of which is annexed hereto as
Exhibit "B."
15. The said last will and testament of -----, last mentioned, was admitted to probate by the Surrogate's Court, County
of -----, about the ----- day of -----, 19--, and letters testamentary were thereafter issued to the defendant ----- and to -----,
who thereupon took upon themselves the duties of executors of and trustees under said will.
16. Upon information and belief, in addition to the various parcels of real estate herein mentioned, the said ----- at the
time of his death was possessed of the following personal property viz: -----.
17. -----, the son of ----- and -----, mentioned in the joint and mutual will aforesaid, died at ----- in the State of New
York, on or about the ----- day of -----, 19--, intestate, leaving him surviving his widow -----, and -----.
18. ----- [state other relevant facts such as decease of next of kin, appointment of guardians or any infant, contingent
remaindermen, and so on].
WHEREFORE, plaintiff demands judgment:
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NY CLS EPTL § 3-2.1
1. That the said mutual will of ----- and -----, deceased, dated ----- 19--, be declared valid and binding upon the estate
of -----, deceased; and also upon the estate of -----, deceased, and upon the defendants in this action; and upon all other
persons mentioned in or benefited by the said mutual will.
2. That the said mutual will be carried out and executed in all respects in reference to the contents and provisions
therein contained, and so far as these plaintiffs are concerned.
3. That the said last will and testament of -----, deceased, be declared inoperative, illegal, and ineffective to devise,
bequeath, give, or dispose of any of the real or personal property which came into the hands of the said -----, deceased,
on the death of his wife -----, deceased, and that in such respects the last will and testament of the said -----, deceased,
be declared null and void.
4. That the defendant executor and trustee render an account of all the property received by him under the last will
and testament of -----, deceased, and that he surrender and deliver up all such property as is found to have come into his
hands from the estate of -----, deceased, under the joint and mutual will aforesaid, and which came into the hands of
-----, deceased, at the time of the death of the said -----, deceased, to such person or persons, receiver, or other party
appointed by this court, to take possession thereof, for the purposes of returning the same to such person or persons as
may be appointed receiver for the purpose of preserving said property until the further determination of this court.
5. That the said defendant -----, as executor of and trustee under the last will and testament of -----, deceased, be
enjoined and restrained from selling, disposing of, parting with, or transferring any of the real or personal property now
in his possession, as such executor and trustee.
6. That in the meantime, and until the final determination of this action, a receiver or receivers be appointed with the
usual powers of receivers, for the purpose of taking possession of and protecting the property mentioned in this
complaint, and of collecting the rents, income, and profits of the real estate, and of the personal property.
7. That plaintiffs have such other and further order or relief in the premises as to the court may seem just, and
8. That plaintiffs have judgment for the costs of this action.
---------Plaintiffs' attorney
[Office address and
telephone number]
[Verification]
[Adapted from the record in Rastter v Hoenninger (1915) 214 NY 66, 108 NE 210]
Form 7
Judgment of Supreme Court Enforcing Joint Will
[Caption]
[Title of court and cause] Judgment
Index No. ----The issues in this action having been regularly brought on the trial before Honorable ----- [Recite trial at Special
Term, service of summons, appearances, and answers in the usual manner];
Now, on motion of -----, attorney for the plaintiffs herein, it is
ORDERED, ADJUDGED, AND DECREED, that the certain paper dated ----- 19--, jointly executed by ----- and
-----, his wife, is their mutual and joint will, which on the death of ----- [wife], on -----, 19--, became the last will and
testament of the said -----, deceased, and the contract of -----, [husband] the survivor, with the deceased, to abide by and
carry out the provisions therein contained; and it is further
ORDERED, ADJUDGED, AND DECREED, that -----, the survivor, by causing said will to be probated, accepting
letters testamentary thereon, and accepting benefits thereunder, bound himself and his estate to carry out the terms and
Page 78
NY CLS EPTL § 3-2.1
provisions in said will contained, which became irrevocable and fixed obligations upon the survivor, who could not
thereafter, by gift, testamentary disposition, or otherwise, dispose of any of the property owned by the deceased or by
the survivor, on -----, 19--, either individually, jointly or as tenants by the entirety; and it is further
ORDERED, ADJUDGED, AND DECREED, that all property, real and personal, owned by ----- and the said -----,
individually, jointly or as tenants by the entirety, whatever name, nature, and description, at the time of her death, comes
within the terms and provisions of said contract, and is subject to and bound thereby; and it is further
ORDERED, ADJUDGED, AND DECREED, that the real estate known as and by the street Nos. ----- and -----, ----Street, in the City of -----, New York, forms part of the property coming within the terms and provisions of said
contract; and it is further
ORDERED, ADJUDGED, AND DECREED, that bank account No. ----- in the ----- Bank standing in the name of
----- [wife], and bank account No. ----- in the ----- Bank in the City of -----, standing in the joint names of ----- and -----,
form part of the property coming within the terms and provisions of said contract; and it is further
ORDERED, ADJUDGED, AND DECREED, that the principal of the aforesaid accounts, in the aforesaid banks,
which was taken and deposited by ----- [husband] in the ----- Bank in the City of -----, account No. -----, also forms part
of the property coming within the terms and provisions of said contract; and it is further
ORDERED, ADJUDGED, AND DECREED, that under the said contract, -----, the survivor, was entitled to the
income of the property during his life; and it is further
ORDERED, ADJUDGED, AND DECREED, that any money other than said such income received by or from the
real estate, or drawn from any banks, and invested by the survivor, in any manner whatsoever, did not become the
individual or separate property of -----, the survivor, but remained property bound by and subject to said contract, and in
which the plaintiffs are entitled to share and participate; and it is further
ORDERED, ADJUDGED, AND DECREED, that ----- after the death of his wife, -----, on ----- 19--, took and
remained in possession of all the property which comes within the terms of such contract and continued in possession of
the same until the time of his death on -----, 19--; and it is further
ORDERED, ADJUDGED, AND DECREED, that on the death of ----- [husband], said property came into the hands
of ----- and -----, as executors and trustees named in the last will and testament of said ----- [husband], deceased, and
remained in their hands and possession up to the present time; and it is further
ORDERED, ADJUDGED, AND DECREED, that on the death of -----, the survivor, all the property, real and
personal, of whatever name, nature, and description, owned by him and ----- at the time of her death, jointly, severally,
or as tenants by the entirety, descended to and became the property of the parties mentioned in the said contract; and it
is further
ORDERED, ADJUDGED, AND DECREED, that -----, the son of the said ----- and -----, mentioned in said contract,
died on ----- 19-- in the City of -----, New York, intestate, leaving him surviving ----- [State surviving kin of joint
testators]; and it is further
ORDERED, ADJUDGED, AND DECREED, that on the death of said ----- [son], his share or portion of the property
coming within the terms of said contract, descended to his said children, who became the owners thereof as tenants in
common; and it is further
ORDERED, ADJUDGED, AND DECREED, that the defendant ----- is the owner of one equal undivided one-half of
said property, subject to any advancements made to her on account thereof; and it is further ----- [continue with decretal
paragraphs with respect to the interests of other kin under the joint will]; and it is further
ORDERED, ADJUDGED, AND DECREED, that the plaintiffs have and hereby are granted the enforcement of the
provisions contained in the contract dated ----- 19--, and an accounting of all the property, real and personal, which is
subject to said contract, and of all the rents, income, issues, and profits thereof, which came into the hands of ----[husband], or the defendants or either of them, or any other person to the use or order of them, or either of them; and it
is further
ORDERED, ADJUDGED, AND DECREED, that the defendant ----- [surviving executor], within 20 days after
service of a copy of this judgment with notice of entry thereof upon his attorney, file and serve an account of all money
and property received and disbursed by him as executor of and trustee under the last will and testament of ----[husband], deceased; and it is further
ORDERED, ADJUDGED, AND DECREED, that the plaintiffs have 20 days after the filing and service of such
account within which to file objections; and it is further
ORDERED, ADJUDGED, AND DECREED, that if the plaintiffs file objections to said account, they may be and
hereby are referred to -----, Esq., Counselor at law, No. ----- Street, in the City of ----- N.Y., who is hereby appointed
referee to take and state such account, and pass upon said account and the exceptions filed thereto, if any, said reference
to proceed upon 5 days' notice given by either party; and it is further
Page 79
NY CLS EPTL § 3-2.1
ORDERED, ADJUDGED, AND DECREED, that the plaintiffs are entitled to their costs and disbursements of this
action amounting to $ -----; and it is further
ORDERED, ADJUDGED, AND DECREED, that the plaintiffs have leave to apply to this court for such further
order or such additional direction as they may be advised.
Enter, ------------------Supreme Court Justice
[Adapted from the papers in Rastter v Hoenninger (1915) 214 NY 66, 108 NE 210]
Form 8
Complaint for Specific Performance of Contract To Make Will
[Title of court and matter]
The above named plaintiffs complaining of the defendants by their attorney, allege as follows:
1. That plaintiffs are residents of the county of -----.
2. That ----- died on the ----- day of -----, 19--, being at the time a resident of the City of -----, County of -----, New
York leaving a last will and testament which was duly admitted to probate in the office of the Surrogate of ----- County
on the ----- day of ----- 19--, and on that day letters testamentary were duly issued to the defendant -----, who was named
as executor in said will, and he duly qualified as such, and is now the sole and acting executor under the said last will
and testament of said -----, deceased.
3. The said ----- was the widow of -----, who died a resident of ----- County on the ----- day of ----- 19-- leaving a last
will and testament, which was duly admitted to probate in the office of the Surrogate of said ----- County on the ----day of ----- 19-- and thereupon letters testamentary were duly issued to ----- and said ----- who were named as executors
in said last will and testament of -----.
4. The said -----, deceased, left as his only heirs and next of kin the following: ----- [List names, addresses and
relationship]
5. After the death of said -----, his brother, said -----, died a resident of ----- County on the ----- day of ----- 19-leaving a last will and testament which was duly admitted to probate in the office of the Surrogate of ----- County on the
----- day of ----- and leaving as his only heirs and next of kin the plaintiffs ----- and -----.
6. Prior to the ----- day of ----- 19--, the said ----- [widow] and her husband the said ----- [deceased] entered into a
mutual contract or agreement, wherein and whereby each for a valuable consideration, the one to the other paid, would
execute mutual wills, in and by which the said ----- in his will should give, devise and bequeath to his widow the said
-----, all his estate, real and personal, and the said ----- [widow] should give, devise and bequeath to said ----- [husband]
all her estate, real and personal; and in said agreement it was mutually agreed by and between them that upon the death
of either one of them the survivor would thereafter make a will giving, devising and bequeathing all the estate of the
survivor to the heirs and next of kin of both testators, and the agreement was, that in case said ----- [husband] should die
before ----- [widow], leaving all his estate to her by his will, then, and in that event, the said ----- [widow] would devise
and give to the next of kin of said ----- [husband] an equitable proportion of the estate so devised to her, and such a
division should be a fair and equitable division between the respective heirs and next of kin of said testators; that in the
event of the death of any legatee named in her said will before her death, the respective share of such a one should not
lapse, but should vest in and be paid to the next of kin of any legatees so dying.
7. Thereupon, pursuant to said agreement, and on the ----- day of ----- 19--, the said ----- and her late husband -----,
did execute their respective wills, in and by which each gave to the survivor all of his or her said estate; copies of these
wills are hereto annexed and marked Exhibit "A" and :B", and made a part of this complaint; and the copy of the will of
said -----, which is hereto annexed and marked Exhibit "A", is the will referred to in paragraph 2 of this complaint,
which was duly admitted to probate in the office of the Surrogate of ----- County on ----- 19--.
8. The executors named in said last will and testament of said ----- were ----- and -----, deceased, to whom letters
testamentary were duly issued, and they thereupon entered upon their duties as such and transferred to said ----- all the
estate of said ----- [husband] both real and personal.
9. The said ----- [husband], deceased, at the time of his death, on the ----- day of ----- 19--, owned real and personal
property to the value of approximately $ -----, and the said -----, prior to that date did not own or hold real or personal
Page 80
NY CLS EPTL § 3-2.1
property exceeding in value of $ -----, including the house and lot in the City of -----, County of ----- known as No. ----Street.
10. After the death of said ----- [husband], and pursuant to the agreement which had been entered into by the said
----- and ----- in his lifetime, and which agreement has been set forth herein in paragraph 6 of this complaint, the said
----- [widow] did, on the ----- day of -----, 19--, affirm, ratify, execute and in part carry out said agreement, and in
pursuance thereof, did duly make, execute, sign, seal, publish and declare a will, in which she did give and devise to the
next of kin of her husband the following sums of money to wit -----.
11. The said ----- [widow] kept and recognized the aforesaid agreement and made no attempt to change or revoke the
said will until -----, 19--; on said -----, 19--, she made, or attempted to make, in violation of the aforesaid contract, a
will, a copy of which is hereto annexed marked Exhibit "D", which will has been admitted to probate in ----- County,
and is the one referred to in paragraph 2 of this complaint.
12. Under the terms of said agreement made between said ----- and -----, her husband, and as set forth in the last will
and testament of said ----- [widow] annexed hereto and marked Exhibit "C", these plaintiffs and the following ----named defendants are entitled to receive and be paid from her estate the following sums of money, viz.: ----- [State
individual and amount allegedly due each].
13. In addition to the above bequest to said -----, now to these plaintiffs, she did agree to give him, after making
certain bequests, all the rest, residue and remainder of her property, with a like provision that in case he should die
before receiving the same, it should be paid to his next of kin, who are these plaintiffs.
14. These plaintiffs are informed and believe that the said defendant -----, as executor of the will of ----- [widow]
will, at an early date, distribute her estate among the legatees named therein, some of whom are of no financial
responsibility, and that unless he be restrained from so doing, these plaintiffs will suffer referable injury thereby.
WHEREFORE, plaintiffs demand judgment that the defendant -----, as executor under the last will and testament of
the said ----- [widow], deceased, dated -----, 19-- be enjoined and restrained during the pendency of this action from
selling, conveying and disposing of any of the real or personal property, or the proceeds thereof, or the rents, issues and
profits thereof, left by the said -----, except as directed by the court and mentioned and described in the said will dated
-----, 19--; or from filing his petition for a final accounting of his acts, doings and transactions as executor under the last
will and testament dated ----- 19--, or to be discharged as executor of the said last will and testament; that the court
order, adjudge and decree that the defendant -----, as executor under the will of ----- [widow], hold all the real and
personal property, or the proceeds thereof, or the rents, issues and profits thereof, left by the said -----, deceased, in trust,
for the purpose of carrying out and performing the said contract between the said ----- and -----, her husband, and for the
purpose of carrying out and performing the bequests provided for in said agreement in said last will and testament of the
said -----, deceased, dated -----, 19--; that the court order, adjudge and decree that the said agreement between ----- and
her husband, -----, be specifically performed; that the said last will and testament of the said -----, deceased, dated -----,
19--, is binding and effectual and now in full force and effect, and that the said ----- had no power to revoke or change
the same; and that an accounting be had between these plaintiffs and said defendant executor of all the estate of said
----- in order that the amount of the residuary estate may be determined; that the legacies mentioned and provided for in
the said last will and testament of the said -----, dated -----, 19--, payable to the next of kin of her husband, -----, be
delivered and paid to the plaintiffs and other next of kin of said ----- as they may be entitled thereto; and that the
plaintiffs have such other and further relief as to the court may seem just.
------------------- Attorneys for
plaintiffs
Office ----------
[Verification] Telephone No. -----
[Adapted from the papers in Morgan v. Sanborn (1919) 225 NY 454, where the trial court dismissed the complaint on
the ground that there was no sufficient proof of a contract].
Form 9
Married Person's Will Leaving Entire Estate to Spouse
Page 81
NY CLS EPTL § 3-2.1
Will of----I, ----- [full name of testator], ----- [if known by other names, add: also known as ----- and -----], ----- [if wife's will
add: formerly known as ----- (maiden name)], of the County of -----, State of New York, declare this to be my last will
and testament.
First: I revoke all previous wills and codicils.
Second: I am married and the name of my ----- [wife or husband] is -----. All references in this will to my ----- [wife
or husband] are to ----- [him or her].
If no children:
Third: I have no children, living or dead.
If children:
Third: I have ----- [number] children of the marriage to -----, as follows: ----- [such as: -----, a boy, born -----, 19--,
and -----, a girl, born -----, 19--]. I have ----- [number] children of a previous marriage to ----- [former spouse], as
follows: ----- [names and birth dates of children], and a deceased child, -----, who died -----, 19--, and who leaves
surviving ----- [names and addresses of descendants].
References in this will to my ----- [child or children] include any of my children that may hereafter be born or
adopted.
Fourth: I give all of my property, real, personal, and mixed, to my ----- [wife or husband], provided ----- [she or he]
survives me ----- [if desired, add: for ----- days]. If ----- [he or she] does not so survive me, then I give my said estate to
my ----- [children or issue], who survive me ----- [if desired, add: for ----- days], per stirpes.
Fifth: I nominate and appoint ----- [such as my wife, ----- (name)], as executor of this will, to serve without bond. If
----- [she or he] should predecease me, or for any reason fail to qualify or decline to act as executor, I nominate and
appoint ----- [name of individual or corporate executor] of ----- [address], City of -----, State of -----, as executor of this
will to serve without bond.
I subscribe my name to this will this ----- day of -----, 19--, at -----, County of -----, State of New York in the
presence of -----, -----, and -----, attesting witnesses, who subscribe their names hereto at my request in my presence.
ATTESTATION CLAUSE
On the date last above written, ----- [testator's name], known to us to be the person whose signature appears at the
end of this will, declared to us, the undersigned, that the foregoing instrument, consisting of ----- pages, including the
page on which we have signed as witnesses, was his will. He then signed the will, in our presence and, at his request, in
his presence, and in the presence of each other, we now sign our names as witnesses.
-----[Signature of witness], residing
at ----- [address]
-----[Signature of witness], residing
at ----- [address]
-----[Signature of witness], residing
at ----- [address]
Form 10
Will of Single Person Without Children
Will of----I ----- [full name of testator], ----- [if known by other names, add: also known as ----- and -----], of the County of
-----, State of New York, declare this to be my last will and testament.
First: I revoke all previous wills and codicils.
Second: I am single, and have never been married. I have no children, living or dead.
Page 82
NY CLS EPTL § 3-2.1
or
Second: I am a ----- [widow or widower]. I was formerly married to -----, who died -----, 19--. I have no children,
living or dead.
or
Second: I am single. I was married once, to -----. The marriage was terminated by a final divorce decree entered -----,
19--, in the case of ----- v. -----, No. -----, in the ----- Court of -----, State of -----. I have no children living or dead.
Third: I make the following gifts of money:
1. To ----- [such as: my brother], ----- [name], of ----- [street address], City of -----, State of -----, the sum of ----Dollars ($ -), if he survives me ----- [if desired, add: for ----- days]. If he does not so survive me, the gift will lapse and
become part of the residue of my estate.
2. To ----- [such as: my housekeeper], ----- [name], of ----- [street address], City of -----, State -----, the sum of ----Dollars ($ -), if she survives me ----- [if desired, add: for ----- days]. If she does not so survive me, the gift will lapse and
become part of the residue of my estate.
Fourth: I make the following gifts of specific personal property:
1. To ----- [such as: my nephew, ----- (name), of ----- (address), I give ----- (subject of gift, such as: my camera
equipment), provided he survives me ----- (if desired, add: for ----- days). If he does not so survive me, I make such gift
to ----- (such as: my good friend), ----- (name), of ----- (address), provided he survives me ----- (if desired, add: for ----days). If he does not so survive me, the gift shall lapse and become part of the residue of my estate].
Fifth: I give all my items of a personal nature, including my personal effects, furniture, and automobile, to ----[name], of ----- [street address], City of -----, State of -----, provided he survives me ----- [if desired, add: for ----- days].
If he does not so survive me, the gift shall lapse and become part of the residue of my estate.
Sixth: To ----- [name], my ----- [relationship, such as: business associate], of ----- [address], I give my real property
located at ----- [street address], City of -----, County of -----, State of New York, consisting of ----- [such as: rental
income residential property, any rentals due thereon, to the time of distribution, and any insurance on the property in
effect and paid for at the time of my death], provided he survives me ----- [if desired, add: for ----- days]. If he does not
so survive me, the gift will lapse and become part of the residue of my estate ----- [Add appropriate provisions relating
to payment of taxes and liens on real property, such as: I direct my executor to pay all taxes on the property due at the
time of my death, and to pay the balance of any existing deed of trust note or other encumbrance against the property
existing at that time or This gift is subject to all encumbrances on the property existing at the time of my death,
including deeds of trust, and to any taxes or assessments then due on the property.]
Seventh: The residue of my estate I give to ----- [such as: my brothers and sisters who survive me for ----- days, share
and share alike. If none of my brothers and sisters survives me for that period, I give the residue of my estate to my
heirs, to be determined according to the laws of the State of New York concerning descent and distribution].
Eighth: Should any of my beneficiaries in this will contest it in any manner, I revoke any gift to him or her, and
direct that his or her share of any gift be disposed of as if he or she had predeceased me.
Ninth: I nominate and appoint as executor of this will ----- [name], of ----- [street address], City of -----, State of -----,
to serve without bond.
I subscribe my name to this will this ----- day of -----, 19--, at -----, in the County of -----, State of New York, in the
presence of -----, -----, and -----, attesting witnesses, who subscribe their names hereto at my request and in my
presence.
[Signature]
[Attestation]
Form 11
Specific Gift of Stock in Closely-Held Corporation
To my ----- [relationship], ----- [name], who resides at ----- [address], City of -----, County of -----, State of New
York, if ----- [he or she] survives me, [if desired, add: for ----- days], I give all the shares of ----- [corporation] held by
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NY CLS EPTL § 3-2.1
me at my death. I intend that the bequest of the shares represent all my right, title, and interest in and to my business at
the time of my death, whether at that time such shares be more or less in number or different in name or class because of
stock splits or reverse splits, stock dividends, corporate mergers, consolidations, or reorganization. It is my desire, and I
so direct that my business be continued after my death and during the administration of my estate, and I direct my
executors to make prompt delivery of this bequest, so far as possible, in order that the business may continue
uninterrupted and that my ----- [customers or clients] may suffer as little inconvenience as possible.
Form 12
Gift of Sole Proprietorship To Be Managed by Persons Familiar With Business
To my ----- [children who survive me, in equal shares], I give my business, consisting of a sole proprietorship
operated by me with the assistance of ----- and ----- [names], under the name of ----- [name of business]. This gift
includes without limitation all tangible assets of the business, including furniture, fixtures, inventories, buildings, motor
vehicles, and other properties used in connection with the operation of the business; the trade name and good will
thereof; accounts receivable and all bank accounts held in the name of the business.
It is my desire and I direct that such business be continued after my death for such periods as may be in the best
interest of my estate and the beneficiaries thereof. However, in this connection, because of the experience and
familiarity with such business possessed by ----- and ----- [names], it is my desire and I direct that they, acting jointly, or
the survivor of them, shall have the sole management of such business after my death, and shall be the sole judge of
whether or not, and for how long after my death, and in what manner such business shall be continued. Therefore, I
direct that my executor shall have no responsibility for, nor any liability arising in any manner from or connected in any
way with the operation or management of such business, or the retention or sale or other disposition thereof, such
matters resting with and to be the sole responsibility of ----- and -----, or the survivor of them, as provided above.
Form 13
Gift of Residue to Trustworthy Individual for Redistribution in Accordance With Separate Memorandum
I give all of my ----- [tangible personal property] not otherwise specifically disposed of by this will, other than
money, evidences of indebtedness, documents of title, securities, and property used in my business, to my ----- [good
friend], ----- [name], and I request and entrust it to ----- [him or her] to distribute such property to the persons named in
a memorandum which I shall deliver to ----- [him or her] prior to my death.
Form 14
Memorandum as to Disposition of Tangible Personal Property
MEMORANDUM AS TO DISPOSITION OF PERSONAL PROPERTY OF ----- [TESTATOR]
Memorandum as to the disposition of the tangible personal property of ----- [testator], pursuant to ----- [his or her]
will dated -----, 19--.
Pursuant to Section ----- of the aforementioned will, I, ----- [testator] request that ----- [name] make the following
gifts of my tangible personal property, immediately on receipt of such property out of my probate estate:
(1) To my ----- [relationship], ----- [name], who resides at ----- [address], City of -----, County of -----, State of New
York, I give ----- [particular description of property].
(2) To my ----- [relationship], ----- [name], who resides at ----- [address], City of -----, County of -----, State of New
York, I give ----- [particular description of property].
(3) ----- [set forth other gifts of property, as above.]
I intend that this memorandum shall have no significance apart from its effect on the disposition of my property after
my death, and I expressly reserve the right to revoke or alter the memorandum at any time prior to my death. I do not
intend by this memorandum to create any rights, whether by anticipation or otherwise in any of the persons mentioned
herein.
Dated -----, 19-[Signature of testator]
Form 15
Authorization To Perform Autopsy
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NY CLS EPTL § 3-2.1
I hereby authorize and direct my executor to authorize the physician who attends me in my last illness to perform an
autopsy on my body in order to determine the cause of my death if the cause is either unknown or in doubt.
Form 16
Gift of Body or Part Thereof
For the purposes of transplantation, therapy, medical or dental research or education, I give ----- [specify: any needed
organs or parts or only the following organs or parts ----- or my entire body] if medically acceptable, to ----- [name of
donee] located at ----- [address], City of -----, County of -----, State of New York, or if the designated donee is
unavailable at my death, to the attending physician at my death.
-----[indicate special wishes or limitations, if any.]
Form 17
"Living Will" Requesting Not To Be Kept Alive by Artificial Means or Heroic Measures
Date: -----, 19--.
To: Dr. ----- [person's physician], and to any medical facility in whose care I happen to be, and to any individual who
may become responsible for my health, welfare or affairs.
Death is as much a reality as birth, growth, maturity, and old age. It is the one certainty of life. If the time comes
when I, -----, presently residing at ----- [address], in the City of -----, County of -----, State of New York, can no longer
take part in decisions for my own future, I desire that this statement stand as an expression of my wishes, while I am
still of sound mind.
If the situation should arise in which there is no reasonable expectation of my recovery from physical or mental
disability, I request that I be allowed to die and not be kept alive by artificial means or heroic measures. I do not fear
death itself as much as the indignities of deterioration, dependency, and hopeless pain. I, therefore, ask that medication
be mercifully administered to me to alleviate suffering even though this may hasten the moment of my death.
This request is made after careful consideration. I hope you who care for me will feel morally bound to follow its
mandate. I recognize that this appears to place a heavy responsibility upon you, but it is with the intention of relieving
you of such responsibility and of placing it upon myself in accordance with my strong convictions, that I have made this
statement.
[Signature of person making statement]
[Attestation]
Copies of this request have been given to ----- [enumerate persons].
Form 18
Affidavit of Family Tree
AFFIDAVITOFFAMILY TREESTATE OF NEW YORK)
)ss.
COUNTY OF [-----] )
I, [-----] , residing at [-----] Road, [-----] , New York, being duly sworn, do hereby depose and say as follows:
1. I am making this Affidavit in order to describe the makeup of my family as of the date of this Affidavit in order to
make that information readily available for use by my attorneys in the event of my death.
2. I was born in [-----] , [-----] on [-----] , 19 [--] .
3. I was married only once during my life. My wife, [-----] , died on [-----] , 19 [--] .
4. I never had any children, natural or adopted.
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NY CLS EPTL § 3-2.1
5. My father's name was [-----] . My mother's name was [-----] , [-----] having been both my mother's maiden name
and her married name. Both of my parents are deceased.
6. My father, [-----] , had one brother, [-----] , and one sister, [-----] . Both [-----] and [-----] are deceased.
7. [-----] had four sons and no daughters: [-----] , who is deceased; [-----] , who is deceased; [-----] , who resides in
[-----] , [-----] ; and [-----] , who lives in [-----] , [-----] .
8. [-----] had four children: one daughter, [-----] , who is deceased, and three sons, [-----] , who is deceased; [-----] ,
who is deceased; and [-----] , who lives in [-----] , [-----] .
9. My mother, [-----] , had one brother, [-----] , who lived in [-----] , [-----] , and who died without issue.
[----------] [Signature, with nameprinted below][Jurat]
Form 19
Supplemental Affidavit of Family Tree
SURROGATE'S COURT OF THE STATE OF NEW YORK
COUNTY OF [-----]
Probate Proceeding, Will of
[----------]
Deceased.
SUPPLEMENTARYAFFIDAVIT OFFAMILY TREEFile No. [-----] STATE OF NEW YORK)
)ss:
COUNTY OF [-----] )
I, [-----] , residing at [-----] Road, [-----] , New York, being duly sworn, depose and say as follows:
(1) I make this affidavit in connection with the above-captioned probate proceeding in order to clarify the kinship
information supplied by [-----] , deceased (the "Decedent") in his Affidavit of Family Tree dated [-----] , 19 [--] .
(2) I am wholly familiar with the makeup of the Decedent's family, having know the Decedent for the last [--] years.
(3) On information and belief, the Decedent was an only child, having no brothers or sisters, natural or adopted or of
the whole or half-blood.
[----------] [Signature, with nameprinted below][Jurat]