LEXSEE 233 A.D.2D 838
In the Matter of the Estate of Stanley Bernatowicz, Deceased. Sherry Callara,
Appellant; Natalie Mack et al., Respondents.
1103
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH
DEPARTMENT
233 A.D.2d 838; 649 N.Y.S.2d 625; 1996 N.Y. App. Div. LEXIS 13296
November 8, 1996, Decided
November 8, 1996, Filed
PRIOR HISTORY: [***1]
(Appeal from Order of
Orleans County Surrogate's Court, Punch, S. - EPTL.)
CASE SUMMARY:
PROCEDURAL POSTURE: Appellant will proponent
challenged an order of the Orleans County Surrogate's
Court (New York), which refused to admit the decedent's
will to probate on the ground that the proponent failed to
demonstrate due execution of the will pursuant to the
requirements of N.Y. Est. Powers & Trusts Law § 3-2.1.
Respondent will opponents contended that the proponent
had controlled rather than assisted the decedent in
signing the will.
OVERVIEW: After several attempts, decedent, who
was very ill, continued to experience difficulty signing
his will. Decedent's counsel advised the proponent that
she could assist by steadying his hand, but that she could
not sign the document for him or move his hand. The
surrogate's court concluded that the proponent controlled
rather than assisted decedent in signing, thus invalidating
the execution. On appeal, the court reversed. The record
established that the act of signing was decedent's act,
acquiesced in and adopted by him. The signature was
therefore assisted, not controlled. That counsel, rather
than decedent himself, requested the assistance did not
render the signature invalid. Witnesses' testimony as to
the circumstances demonstrated compliance with the
other requirements of N.Y. Est. Powers & Trusts Law §
3-2.1. Their testimony sufficiently established that
decedent signed the document and asked the witnesses to
sign. The court rejected the opponents' contention that
the execution was invalid because decedent declared that
the document was his will before signing it. The lower
court erred in concluding that the proponent failed to
demonstrate due execution of decedent's will.
OUTCOME: The court reversed the surrogate court's
order, reinstated the petition, and remitted the matter to
the surrogate's court for further proceedings on the
petition.
CORE TERMS: testator, decedent, signing, signature,
proponent, invalid, physically, acquiesced, purported,
testament, legatee, steady
LexisNexis(R) Headnotes
Estate, Gift & Trust Law > Will Contests >
Testamentary Formalities
[HN1] The question whether the testator's signature on a
will is assisted or controlled does not turn on the extent
of the aid, but rather whether the act of signing was in
any degree an act of the testator, acquiesced in and
adopted by him.
Estate, Gift & Trust Law > Will Contests >
Testamentary Formalities
[HN2] When the act of signing a will is the act of
decedent, acquiesced in and adopted by him, his
signature is assisted rather than controlled.The fact that
decedent himself does not request assistance but rather
his counsel suggests that he be assisted does not render
the signature invalid.
Page 2
233 A.D.2d 838, *; 649 N.Y.S.2d 625, **;
1996 N.Y. App. Div. LEXIS 13296, ***
Estate, Gift & Trust Law > Will Contests >
Testamentary Formalities
[HN3] The circumstances surrounding the witnessing of
the will must comply with the requirements of N.Y. Est.
Powers & Trusts Law § 3-2.1.The decedent must sign
the document purported to be his will and request that
the witnesses sign the document. The execution of a will
is not invalid because the decedent declares the
document to be his will before, rather than after, he signs
it.
JUDGES: Present--Green, J. P., Lawton, Doerr, Balio
and Boehm, JJ.
OPINION: [*838] [**626] Order reversed on the
law without costs, petition reinstated and matter remitted
to Orleans County Surrogate's Court for further
proceedings on petition.
We conclude that Surrogate's Court erred in refusing
to admit the will of decedent on the ground that
proponent failed to demonstrate due execution of the
will. The record shows that decedent, who was very ill,
attempted to sign his name to his will, but had difficulty
doing so. When, after several attempts, decedent
continued to experience difficulty, decedent's counsel
advised proponent that she could aid decedent by
steadying his hand. Counsel further advised proponent
that she could not sign the document for decedent or
move his hand. The Surrogate concluded that proponent
controlled rather than assisted decedent in signing the
document and that its execution was therefore invalid.
We disagree.
[HN1] The question whether a signature is assisted
or controlled does not turn on the extent of the aid, but
rather whether the act of "signing was in any degree
[***2] an act of the testator, acquiesced in and adopted
by him" ( Matter of Kearney, 69 App Div 481, 483).
Here, the record establishes that [HN2] the act of
signing was the act of decedent, acquiesced in and
adopted by him and, therefore, the signature was assisted
rather than controlled. We conclude that the fact that
decedent did not request assistance but, rather, that his
counsel suggested that he be assisted does not render the
signature invalid. We further conclude that the testimony
of the witnesses regarding [HN3] the circumstances
surrounding the witnessing of the will demonstrates
compliance with the other requirements of EPTL 3-2.1.
That testimony sufficiently establishes that decedent
signed the document purported to be his will and
requested the witnesses to sign the document (see
generally, Matter of Dujenski, 147 AD2d 958). We reject
the contention of respondents that the execution of the
will was invalid because decedent declared the document
to be his will before, rather than after, he signed it (see,
Matter of Haber, 118 Misc 179, 182; EPTL 3-2.1 [a] [1]
[B]). Consequently, we reverse the order, reinstate the
petition and remit the matter to Orleans County [***3]
Surrogate's Court for further proceedings on the petition.
All concur except Balio, J., who dissents and votes
to affirm in the following Memorandum.
DISSENT:
Balio, J. (Dissenting). I respectfully dissent. The
Surrogate found that the testator did not ask for
assistance in signing his [*839] purported last will and
testament and that, based upon the substantial difference
in the manner and quality of the testator's handwriting
after Sherry Callara physically assisted in the signing,
she did more than steady his hand, and that she
controlled the movement of his hand. Thus, the court
concluded that the proposed last will and testament had
not been duly executed.
EPTL 3-2.1 (a) (1) requires that the testator execute
a will by signing it or by having another person sign it in
his name "and by his direction". Where, as here, the
testator is physically infirm, a third person may assist the
testator by holding and guiding his hand or arm (see,
Matter of Morris, 208 AD2d 733, 734; Matter of
Kearney, 69 App Div 481, 483). Although the testator
must request the assistance (see, Matter of Morris,
supra; Matter of Kearney, supra), the fact that the
testator desired [***4] such assistance may be inferred
from the circumstances (see, Matter of Lewis, 193 Misc
183; Matter of Knight, 87 Misc 577). The hearing
testimony establishes that the testator was on his
deathbed. In fact, he died a few hours after attempting
to sign the will. Two persons had to prop the testator up
to a sitting position so that he could attempt to sign the
will. One of those persons is a legatee under the
proposed will and the other, Sherry Callara, is the mother
of the other legatee and is named the executrix under the
will. When the testator appeared to be having difficulty
signing his name, his attorney suggested that Callara
assist by holding his hand steady. The Surrogate
determined, based upon the testimony and the
appearance of the signature, that the testator did
[**627] not request Callara's assistance and that Callara
actually controlled the testator's conduct in signing the
will. That determination, made by the Judge who
presided at the hearing and heard the testimony, "is
entitled to great weight in this case, which hinged on the
credibility of the witnesses" ( Matter of Margolis, 218
AD2d 738, 739, lv denied 88 NY2d 802; see also, Matter
[***5] of Morris, supra; Hanley v Williamson, 186
AD2d 1010). I perceive no basis in this record to disturb
the Surrogate's findings. (Appeal from Order of Orleans
County Surrogate's Court, Punch, S.--EPTL.)
Page 3
233 A.D.2d 838, *; 649 N.Y.S.2d 625, **;
1996 N.Y. App. Div. LEXIS 13296, ***
Present--Green, J. P., Lawton, Doerr, Balio and
Boehm, JJ.