Surrogate Thomas E. Walsh II of Rockland County has denied a probate petition where the proponent was unable to establish due execution pursuant to the requirements of the Estates Powers and Trusts Law. It would seem improbable that a will witnessed by three experienced accountants (two of them CPAs) would not pass muster but that was the case in the matter of the Will of Christopher E. DiPasquale, 709/09, decided this past August 28th and reported at page 29 of the New York Law Journal on September 12, 2008.
While there is a presumption under the law that a will executed under the supervision of a licensed attorney was duly executed, there was no attorney to supervise the execution of Mr. DiPasquale’s will in addition to the accountant witnesses. The law provides that a certain formality exist in the course of the execution of a will.It must be established that the testator was aware that he or she was signing the will, and was aware of the objects of his or her bounty. It must be shown that the testator was aware of the purpose of the witnesses and that he or she requested them to act in that capacity.
It may seem a bit hokey but the ritual that surrounds the making of a will is deadly (wrong word, I guess) serious. Please keep in mind that this ceremony is one of the ways to insure that we get a genuine and true set of instructions from the testator as to how to dispose of his or her property when the time comes. Here, the failure to have the execution of the will supervised by a licensed attorney was compounded by the inability of the accountant / witnesses to be able to show that the formal discussion with the testator had taken place so that could not be documented that he was aware that he was making his will or that the three accountants would be witnessing it. Even though the witnesses had signed standard living affidavits reciting that the formalities had been observed, their testimony in court failed to bear this out. Under the circumstances, the court had no choice but to deny probate.