Today’s New York Law Journal reports that Nassau County Surrogate Edward J McCarty has found an interesting solution to an interesting problem in the Will of Jean Santoro, 2011-363-36488(May3.Apparently, there were no affidavits given by the witnesses to Ms. Santoro’s will when she executed it 19 years ago. To make things worse, one witness had disappeared and the other had died. While the old common law rule permits the admission of a will to probate where it is an "ancient " document of more than 30 years, this will hardly qualifies as ancient. It even falls a year short under the federal rule which provides for 20 years.
Surrogate McCarty’s solution was novel. It seems that the deceased witness was also the attorney-drafter of the will. A handwriting expert was called to establish that the person who executed the attorney’s last will and testament (already admitted to probate in Nassau County) was the same person who witnessed the Santoro Will. Based upon this expert comparison of signatures, the judge ruled that the will might be admitted to probate.
There are a couple of take-a-ways from this little vignette. First is that no New York lawyer in his right mind should EVER supervise the execution of a will that lacks a self-proving affidavit from each of the witnesses. Having that affidavit attached to the will enables the admission of the will to probate without the need to locate and get affidavits from the witnesses years later when they may be dead or missing.
The second thing to note here is that this will was uncontested! The court was willing to extend itself and to reach in order to see to it that the testatrix’s intent to dispose of her worldly goods was carried out. What would the result have been had a contest occurred? In a situation where parties came forward to object to the admission of the will to probate, this matter would certainly have gone up on appeal where there would have been a strong likelihood not to admit a document to probate which did not clearly fall under the classification of "ancient". In such a case, the decedent would have been adjudged intestate and her wishes might never have been carried out.