In re the Estate of Halpern
Lead Opinion
Decree,
Three witnesses signed the will. Harry Grayer, Esq., Barbara Sammons, and Mary Ann Schuder. Grayer was the decedent’s attorney. There is an invoice from Grayer in the record, dated September 12, 1958, the day the will was executed, charging Seymour for “professional services rendered” “Re: Preparation of Will, etc.” The two other witnesses, Sammons and Schuder, worked in the decedent’s medical office at the time the will was signed. All three of the witnesses’ signatures appear at the end of the will, underneath an attestation clause, which recites: “The above instrument was on the 12th day of September, 1958 in the Borough of Manhattan, County, City and State of New York, subscribed by SEYMOUR LIONEL HALPERN, the Testator above named in the presence of us and of each of us, and at the same time and place, the above instrument was published and declared by the said Testator to be his Last Will and Testament and thereupon each of us at the request of the said Testator and in his presence and in the presence of each other have hereunto signed our names as witnesses thereto, and wrote the places of our respective residences alongside our names.” The will made a number of minor bequests to relatives and charitable organizations. With the exception of those bequests, Anafred and Adrienne, Seymour’s eldest daughter, and his only child born before 1958, were the sole beneficiaries under the will, with a provision made for any after-born children. Seymour and Anafred subsequently had a second daughter and a son, Vivienne and Ronald.
In the fall of 2006, Adrienne and Vivienne (the proponents) submitted a petition for admission of the will to probate. On June 29, 2007, Ms. Sammons, the only surviving attesting witness, was deposed. The deposition lasted 45 minutes. Ms. Sammons, who was 69 years old, testified that she recognized her signature at the end of the will and that she remembered living
On July 17, 2007, Elizabeth filed objections to probate, asserting that the will was not duly executed. The proponents moved for summary judgment to admit the will to probate, and the objectant cross-moved for summary judgment as well. The court held a hearing and concluded that there was no material issue of fact as to the due execution of the will. The objectant appeals from the decree admitting the will to probate.
Before admitting a will to probate, Surrogate’s Court must be satisfied that the execution of the will was valid (see SCPA 1408; Matter of Pirozzi,
In 1958, when the instant will was purportedly executed, Decedent Estate Law § 21 governed. That section provided:
“Every last will and testament of real or personal property, or both, shall be executed and attested in the following manner:
“1. It shall be subscribed by the testator at the end of the will.
“2. Such subscription shall be made by the testator in the presence of each of the attesting witnesses, or shall be acknowledged by him, to have been so made, to each of the attesting witnesses.
“3. The testator, at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed, to be his last will and testament.
“4. There shall be at least two attesting witnesses, each of whom shall sign his name as a witness, at the end of the will, at the request of the testator.”
Here, Dr. Halpern signed the will at the end of the document (Decedent Estate Law § 21 [1]). An attestation clause states that he did so in the presence of three attesting witnesses (Decedent Estate Law § 21 [2]). This clause also states that Dr. Halpern declared the document to be his last will and testament (Decedent Estate Law § 21 [3]). Mr. Grayer, the decedent’s lawyer, prepared the will, served as an attesting witness, and billed the decedent, on the date of the execution of the instrument, for services rendered with respect to its “Preparation . . . etc.” (see Seelig,
Thus, Surrogate’s Court correctly concluded that the proponents demonstrated a prima facie showing of due execution of the will, as it contained a valid attestation clause (see Matter of Collins,
Upon the presumption of due execution, the burden then shifted to the objectant to produce evidentiary proof in admissible form to rebut the presumption and raise a material issue of fact (Seelig,
It is the dissent’s position that a trier of fact could reasonably infer, from the sole surviving witness’s deposition testimony, that the formalities set forth in the attestation clause had never taken place. However, the excerpts from her EBT relied on by the dissent, read in context, can also be interpreted as testifying that she could not confirm the statements made in the attestation clause because she didn’t remember an event almost 50 years earlier, when she was approximately 20 years old.
In this case, by contrast to Lewis, almost five decades (not two years) had passed between the purported execution of the will and its presentation for probate. Here, there was only one living witness to be examined, and the Surrogate found that her testimony was insufficient to rebut the presumption of due execution because, she could not “recall the circumstances surrounding execution” of the will. The Court of Appeals’ holding in Lewis was based on entirely different facts and does not require a different result.
Likewise, in Pulvermacher, three years before the testator’s death, he asked a guard and a vault attendant at his bank to witness his signature at the bottom of a folded sheet of paper. Both witnesses were available to testify in the probate proceedings, and they were consistent in their testimony that the decedent did not declare the document to be a will. The deposition testimony indicated that while both signed their names next to the decedent’s signature, neither knew what they were signing, and the document did not have an attestation clause stating that the publication requirement had been complied with. The Court of Appeals denied probate for lack of proper publication.
In the circumstances, given all of the evidence submitted to the Surrogate—the objectant’s delivery of the will, which she found in the decedent’s closet; the invoice from the attorney-drafter, dated the same day the will was purportedly executed, September 12, 1958; the signature of the supervising attorney at the end of the will (authenticated by a handwriting expert); the admission of the attesting witness that she too signed the will and that her address at the time was correctly set forth next to her signature; and the authentication of the decedent and the attorney’s signatures at the end of the will by a handwriting expert—it was not an abuse of the court’s discretion to have granted the proponent’s motion for summary judgment admitting the subject will to probate. Concur—Gonzalez, P.J., Saxe, Acosta and Román, JJ.
Notes
. The decree refers to an earlier order which granted petitioners’ motion for summary judgment and denied the cross motion for summary judgment of the objectant.
. See also Matter of Mackay (
Dissenting Opinion
dissents in a memorandum as follows: The majority holds that the deposition testimony of Barbara Sammons does not raise a material issue of fact on the question of whether the will was duly executed. The majority so holds because it concludes that the deposition testimony given by Ms. Sammons that I quote below, “read in context, can also be interpreted as stating that she could not confirm the statements made in the attestation clause because she didn’t remember an event almost 50 years earlier.” Ms. Sammons, however, certainly did not testify merely that she could not remember those circumstances and her testimony certainly cannot as a matter of law only be so interpreted. Rather, viewing her testimony as a whole, the trier of fact reasonably could conclude that an execution ceremony in accordance with the law had never taken place. For that reason, I respectfully dissent.
Ms. Sammons was 69 years old at the time of her deposition, almost 49 years after the date the will allegedly was executed and attested to in accordance with the then-applicable law, Decedent Estate Law § 21. She testified that she began working for the decedent, Dr. Seymour Halpern, in 1956, when she was 19 years old, and worked for him as a “medical assistant” until she was 21. A woman named Mary Ann also worked for the decedent. The decedent’s practice was in internal medicine and Ms. Sammons’s duties included secretarial work, such as answering phones, sending out bills, handling correspondence with other doctors, and assisting with examinations.
Ms. Sammons was then examined by counsel for the object-ant, the decedent’s second wife. She testified that correspondence coming out of the decedent’s office did not require her signature, and that she did not sign any documents while in the office. Asked if “it would be unique and very much out of the ordinary if [she] did sign any document while in the office,” Ms. Sammons answered, “That’s true.” Ms. Sammons also testified that she did not remember the decedent ever mentioning to her that he had a will, and that she would no longer recognize his signature. At that point, testimony that is critical to the proper resolution of this appeal was elicited:
“Q: At any time, did Dr. Halpern announce or declare to you that he had signed his last will and testament and then asked you to sign as a witness?
“[proponents’ counsel]: Objection.
“A: No.
“Q: If Dr. Halpern had done that, meaning said I am declaring this document to be my last will and testament and,Barbara, I would like you to sign it for me, do you feel that is something you would remember?
“A: Yes, I probably would.
“Q: Why do you think you would remember that?
“A: It’s very specific. I can’t imagine him doing that. As I said, he was very controlling and very private and very . . . .”
This unequivocal “No,” in response to a question that was more specific than those previously asked by counsel for the proponents, was not negated by Ms. Sammons’s later testimony. Nor did her later testimony undermine her explanation for why she “probably” would remember such a declaration and request from the decedent. To the contrary, Ms. Sammons’s testimony that the decedent never stated to her that he had signed his will before asking her to sign it as a witness was reinforced by the testimony she went on to give in response to additional, similarly specific questions posed by counsel for the objectant:
“Q: Now, that paragraph right above your signature says that you, Mary Ann Schuder, the attorney Harry Grayer and Dr. Halpern all executed this Will in each other’s presence. In other words, you’re in the same room at the same time. Did that ever happen?
“A: I don’t remember it happening. Is that the correct answer?
“Q: The correct answer is what you remember.
“A: I don’t remember it happening.
“Q: Was there ever any occasion where you signed any document with a lawyer and Dr. Halpern in the same room at the same time?
“A: Not that I remember.
“Q: Can you say definitively that it did or didn’t happen?
“A: It didn’t happen.
“Q: Can you feel confident when you say that?
“A: I don’t remember it happening. So yes, I do feel confident when I say that.
“Q: You feel confident when you say that it did not occur; is that right?
“A: Right.
“Q: Now, we’re presuming under the—strike that.
“A: How do you expect people to remember what happened 50 years ago? This is what. . .
“Q: I understand, I understand.
“[proponents’ counsel]: Let her finish.
“A: I can’t remember what happened ten years ago. Sorry.
“Q: Well, you do. You remember plenty about your college. So your signature appears on [the will], correct?
“A: It is.
“Q: Did anyone, not just Dr. Halpern, but did anyone tell you that the document you were signing was anybody’s will?
“[proponent’s counsel]: Objection.
“A: No.”
Ms. Sammons also testified that if the decedent had put a document in front of her and told her to sign it, she “probably” would have signed it because he “was controlling, manipulative.” As a 19 or 20 year old, she would not have felt comfortable asking the decedent what he was asking her to sign. She “didn’t think that way back then.”
Ms. Sammons was questioned anew by the proponents’ counsel. Asked if it was possible that there were other people in the room when she signed the will, she answered “I don’t remember,” but acknowledged it was possible. Similarly, she did not recall anyone saying anything to her when she signed the will, but acknowledged it was possible someone had. However, when she was asked more specifically if it was possible that someone told her the document was a will, she first answered “No” before stating, “Anything is possible 50 years ago.”
In pertinent part, the formal requirements for the execution and attestation of a will, as set forth in EPTL 3-2.1 (a), are that: “[t]he 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”; “[t]he testator may either sign in the presence of, or acknowledge his signature to each attesting witness separately”; and “[t]he 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.” These formalities have been required to prove due execution of a will for more than 150 years (see Lewis v Lewis,
“The publication requirement mandates that decedent make [his] intention known that the document is to serve as [his] will, and absent such declaration, the instrument should not be admitted to probate” (id.; see Lewis, supra). Although due execution may be shown by evidence other than the testimony of the attesting witnesses, “[i]t cannot however be presumed in opposition to positive testimony, merely upon the ground that the attestation clause is in due form and states that all things were done which are required to be done to make the instrument valid as a will” (Lewis,
Although it is true that “a presumption of regularity is raised that the will was properly executed” when an attorney drafts it and supervises its execution (Matter of Leach,
The attesting witness further testified that after requesting that he and his coworker sign the document and add their addresses, the deceased stated, “ T declare the within to be my free will and deed’ ” (id. at 225). He and his coworker then signed the document. He did not know with certainty that the document was a will although he believed that it may have been one because “the deceased had that morning sent out and procured a blank will” (id. at 222). The other attesting witness testified that: “he signed his name to the alleged will in the office of the deceased; that he was unable to say what occurred on that occasion, but that according to his recollection he signed it at the request of the deceased; that he had no recollection that the deceased said any thing else to him at the time he requested him to sign it, unless it was ‘to see him sign the document;’ that he did not recollect that the deceased signed the instrument in his presence; that he had no recollection that . . . the other witness[ ] was present when he signed .... On his cross-examination he further testified that according to his recollection he did not read, nor was any part of the instrument read to him when he signed it, and that he had no recollection that he then knew what the paper was” (id.).
The Court of Appeals relied on this testimony from the attesting witnesses in finding that the evidence warranted “the conclusion that the instrument was not subscribed by the decedent in the presence of the witnesses; that the paper was so folded that the witnesses did not see the subscription, and that the only declaration or acknowledgment of the party was in substance, T declare the within to be my free will and deed,’ ” which the Court found insufficient to comply with the statutory requirements (id. at 225). Specifically, the Court stated: “[I]t might probably be inferred that the deceased at the time of requesting the witnesses to subscribe as such, had himself signed the instrument and intended to comply with the statute and make a valid will. But that is not sufficient. The formalities
Almost a century later, the Court of Appeals reiterated this requirement that the “definite formalities” of the statute, one of them being publication of the document as a will, be complied with in order for a will to be admitted to probate (Matter of Pulvermacher,
The majority attempts to distinguish Lewis and Pulvermacher from this case on the ground that a longer period of time passed between the execution of the will and its submission to the court for probate. But the number of years that passed by is irrelevant to the question of whether the will was properly executed in accordance with the statutory requirements.
Summary judgment in a contested probate proceeding is rare (Matter of Colverd,
Moreover, Ms. Sammons provided specific and credible reasons why she “probably” would remember a will ceremony if one had occurred. As she explained, she thought she would remember if the decedent had asked her to sign a document that he had declared to be his last will and testament, because “it’s very specific” and she could not “imagine him doing that” as he was “very controlling and very private.” Similarly, she gave a specific and credible explanation for why her signature nonetheless might appear on the will underneath the attestation: because of her youth and his “controlling, manipulative nature,” she “probably” would have signed a document if he put it in front of her and told her to sign it. Regardless of what may or may not be the case today, the majority cannot dismiss as implausible the notion that 50 years ago a male employer might be so “very controlling and very private” with respect to a young female employee as to direct her to sign a document and keep her in the dark about its nature.
Furthermore, that a will ceremony is an unusual event is a matter of common experience. For this reason, a trier of fact could conclude that, even 50 years later, a person might well remember participating in it. As the Court of Appeals explained, embedding the will ceremony in the memory of the attesting witnesses is one of the very reasons for the statutory requirements (Pulvermacher,
The key to this appeal is that the inference that Ms. Sammons would have remembered a will ceremony is one to which the objectant, as the opponent of the motion for summary judg