In re Gancaz, 2022-22005

CourtNew York Surrogate Court
Writing for the CourtMichael G. Hayes, S., J.
Docket Number2022-22005,2021-1136
PartiesIn the Matter of Probate Proceeding, Estate of Marion T. Gancaz, Deceased.
Decision Date07 January 2022

In the Matter of Probate Proceeding, Estate of Marion T. Gancaz, Deceased.

No. 2022-22005

No. 2021-1136

Surrogate's Court, Dutchess County

January 7, 2022


The Petitioner is represented by Carl Wolfson, Esq., O'Connor & Partners, PLLC

Michael G. Hayes, S., J.

A probate petition has been filed by Gary K. Gancaz, the decedent's son and nominated Executor. The petition requests that the instrument purporting to be the Last Will and Testament of the decedent, Marion T. Gancaz, dated April 26, 2000, be admitted to probate. The Petition also asks that Gary Gancaz be appointed the Executor of the Estate.

The propounded instrument is a simple, two-page stapled document containing three substantive paragraphs. All three of those substantive paragraphs appear on the first page of the document. The decedent signed the bottom of the first page, immediately after the last dispositive provision. The decedent also signed the second page, which is limited to a signature line for the testator, and an attestation clause which was signed by two witnesses and the attorney-draftsman who supervised the execution ceremony. These witnesses also signed a self-proving affidavit during the execution ceremony, which has been filed with the Court.

"The proponent of a will has the burden of proving that the propounded instrument was duly executed in conformance with the statutory requirements." [ Matter of Sabatelli, 161 A.D.3d 872, 873 (2d Dept 2018)]. The elements of due execution are: (1) the testator signed the instrument at its end; (2) the testator signed the instrument, or acknowledged his signature, in the presence of at least two attesting witnesses; (3) the testator declared the instrument to be his will in the presence of the attesting witnesses; (4) the testator asked the attesting witnesses to sign the instrument, and they signed it within 30 days of each other. [EPTL § 3-2.1(a)]. [1]

"Where, as here, the attorney draftsman supervised the will's execution, there is a presumption of regularity that the will was properly executed in all respects." [ Matter of Tuccio, 38 A.D.3d 791 (2d Dept 2007)]. "A presumption of compliance with the statutory requirements also arises where a propounded will contains an executed attestation clause and a self-proving affidavit." [ Matter of Greene, 89 A.D.3d 941, 943 (2d Dept 2011)].

Applying these presumptions to the propounded instrument, the Petitioner has made the requisite prima facie showing of compliance with all four elements of due execution. Although the decedent signed the propounded Will twice (at the bottom of the first page and again at the top of the second page), this does not run afoul of EPTL 3-2.1(a)(1), which "mandates that the testator must sign the will 'at the end thereof' thus retaining a requisite formality which has continued for well over a century."[ Matter of Zaharis, 91 A.D.2d 737, 737 (3d Dept 1982), aff'd 59 N.Y.2d 629 (1983)]. Rather, by placing her signature on the bottom of the first page (after the last substantive provision), and again at the top of the second page (on the designated signature line), the decedent merely sought to authenticate each page by contemporaneously adding her mark thereto. As such, these signatures promote, rather than defeats, the statute's laudatory purposes. [ Matter of Johnson, 69 Misc.3d 357 (Sur. Ct. Dutchess County 2020)]. Therefore, the Court finds no legal reason why the Will may not be admitted to probate.

Petitioner also asks the Court to construe the third paragraph of the Will as waiving any requirement that the nominated Executor post a bond or other security. The first paragraph devises the decedent's entire Estate, "both real and personal, of every nature and kind," to petitioner. The second paragraph nominates petitioner as the sole Executor of the Estate. No successor Executor is nominated in that instrument. Finally, the third paragraph reads "I further direct that of my Executor shall be required to post any bond or security for the performance of his duties as such Executor, any statute to the contrary notwithstanding."

The attorney-draftsman of the Will has submitted an Affirmation in support of this requested construction. He states that the third paragraph was "incorrectly transcribed," and that the testator's intent was to waive any requirement that her son -- her only legatee and sole distributee -- post a bond or other security in connection with his service as the nominated Executor. He further states that the failure to insert the word "not" immediately before the words "be required" was a "scrivener's error," and that the...

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