In re Gancaz
| Citation | 74 Misc.3d 502,161 N.Y.S.3d 735 |
| Decision Date | 07 January 2022 |
| Docket Number | File No: 2021-1136 |
| Parties | In the MATTER OF Probate Proceeding, ESTATE OF Marion T. GANCAZ, Deceased. |
| Court | New York Surrogate Court |
The Petitioner is represented by Carl Wolfson, Esq., O'Connor & Partners, PLLC, 11 Market Street, Suite 203, Poughkeepsie, NY 12601 (845) 404-1881.
Michael G. Hayes, S.
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, 76 N.Y.S.3d 207 (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, 832 N.Y.S.2d 609 (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, 932 N.Y.S.2d 544 (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, 457 N.Y.S.2d 995 (3d Dept. 1982), aff'd 59 N.Y.2d 629, 463 N.Y.S.2d 195, 449 N.E.2d 1273 (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, 129 N.Y.S.3d 304 (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 third paragraph fails to reflect the testator's actual intent as a result of this inadvertent omission. Counsel also argues that the third paragraph "is not proper English" unless the missing "not" is supplied, and that the Court should treat this as additional evidence that the third paragraph does not accurately express the testator's intent.
Finally, counsel states that there are no known debts of the Estate, and that requiring the nominated Executor (and sole beneficiary) to post a bond would cause unnecessary delay and expense in the administration of this modest and uncomplicated Estate.
When a party asks for construction of a will in a pending probate proceeding, a citation must be issued to all parties interested in the determination who have not yet appeared in the proceeding. Notice of the construction application must also be provided to all those persons who have already appeared in the proceeding, including any party who signed a waiver and consent to probate. [ SCPA § 1420(3) ].
The Petition is accompanied by an Affidavit of Heirship and a Family Tree [ 22 NYCRR § 207.16(c)(2) ]. These materials establish that the 94-year-old decedent was predeceased by her husband more than 20 years ago, that she signed the Will more than a year after her husband's death, and that she never remarried. These materials also show that petitioner is the testator's only child, and that she did not have any other children, surviving or deceased, born or adopted, marital or non-marital. Since there are no other legatees, no other distributees, and no other persons interested in the determination or otherwise entitled to notice of this application, the Court may entertain the request for construction without issuing process.
SCPA § 1420(3) states that the Court may determine the question of construction "upon the entry of a decree admitting the will to probate." A literal reading of this statute might suggest that the Court is compelled to first issue a probate decree, and to then construe the will in a successive decree. But the more practical approach is to read the statute as granting the Court the discretion to admit a will to probate and to construe the will in the same decree [ Matter of Noble's , ––– Misc. ––––, 95 N.Y.S.2d 375 (Sur. Ct. Westchester County 1950) ("A Surrogate is empowered to construe a will in a probate proceeding at or after the time of making the decree admitting the will to probate")].
This practical approach may be particularly conducive in those situations where the estate is modest, probate is unopposed, the construction determination is relatively straightforward, and entering a joint decree will avoid unnecessary expense and delay [see Matter of Halvardson's , 137 Misc. 75, 243 N.Y.S. 123 (Sur. Ct. Bronx County 1930) (a request for...
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