In re Johnson
| Decision Date | 05 August 2020 |
| Docket Number | 2019-510 |
| Citation | 129 N.Y.S.3d 304,69 Misc.3d 357 |
| Parties | In the MATTER OF Probate Proceeding, ESTATE OF Brendan Colin JOHNSON, Deceased. |
| Court | New York Surrogate Court |
69 Misc.3d 357
129 N.Y.S.3d 304
In the MATTER OF Probate Proceeding, ESTATE OF Brendan Colin JOHNSON, Deceased.
2019-510
Surrogate's Court, New York, Dutchess County.
Decided August 5, 2020
Drake Loeb PLLC, 555 Hudson Valley Avenue, New Windsor, NY 12553, (845) 561-0550
Michael G. Hayes, J.
A probate petition has been filed by Anna M. Johnson, the decedent's wife and nominated Executor. The Petition requests that the instrument purporting to be the Last Will and Testament of the decedent, Brendan Colin Johnson, dated April 18, 2009, be admitted to probate. The Petition
also asks that Anna M. Johnson be appointed the Executor of the Estate.
The propounded instrument is a five-page stapled document. A preamble identifies the document as a Military Testamentary Instrument pursuant to 10 USC § 1044d. The first page of the document also states that it was drafted by a military legal assistance attorney assigned to the Legal Support Services Section of the Mobilization Command in Fort Worth, Texas.
The decedent and both attesting witnesses signed the bottom of every page of the document. The decedent also signed the fourth page immediately after the last dispositive provision and just before the attestation clause, which was signed by both witnesses. The fifth page is a "Military Testamentary Instrument Self-Proving Affidavit" sworn to by the attesting witnesses, and certified by the attorney who prepared the document and supervised its execution.
"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 her signature, in the presence of at least two attesting witnesses; (3) the testator declared the instrument to be her 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) ]. "The Petitioner has clearly made the requisite prima facie showing of compliance with the last three elements of due execution. The only remaining question is whether the testator's signature on the bottom of each page of the instrument runs afoul of the statutory requirement that the testator's signature appear at the end of the will. The answer to this question must be determined as a matter of law. [ 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) ].
EPTL 3-2.1(a)(1) "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." [ id. at 737, 457 N.Y.S.2d 995 ]. "This
statutory provision requiring the subscription of the name to be at the end is a wholesome one and was adopted to remedy real or threatened evils." [ id. at 737, 457 N.Y.S.2d 995. See also Younger v. Duffie , 94 N.Y. 535, 539 (1884) ("The purpose of the law which requires the subscription to be at the end of the will is to prevent fraudulent additions to a will before or after its execution") ].
While this statutory purpose is undeniably worthy, it has also been long recognized that "[f]orm should not be raised above substance in order to destroy a will." [ Matter of Field , 204 N.Y. 448, 457, 97 N.E. 881 (1912) ]. Here, the proponent does not rely on the signatures that appear at the bottom of each page. Instead, the proponent solely relies upon the signature that appears in the body of the fourth page, after the last dispositive provision and before the attestation clause. [see Matter of Jarvis , 124 Misc. 563, 564, 208 N.Y.S. 796 (Sur. Ct. Erie County 1925) ].
Under these circumstances, the signatures appearing on the bottom of each page of the document do not engender any concern that there has been an attempt to circumvent the decedent's wishes or to evade the statutory scheme. [see Matter of Leslie , NYLJ, Jan. 17, 2014 (Sur. Ct. Bronx County)]. Rather, by placing his signature on the bottom of each page, the testator merely sought to authenticate each page of the stapled document by contemporaneously adding his mark thereto. Seen in this light, the signatures that appear on the bottom of each page promote, rather than defeats, the statute's laudatory purposes.
"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) ]. Here, the witnesses signed an attestation clause stating that the decedent signed, published and declared the instrument to be his last will and testament in their presence, and that on that same date the witnesses signed the attestation clause at decedent's request and in his presence. The attestation clause is complete, the signatures are genuine, and the circumstances surrounding this attorney-supervised signing ceremony support a finding that the instrument was duly executed. [ Matter of Christie , 170 A.D.3d 718, 719, 95 N.Y.S.3d 286 (2d Dept. 2019) ; Matter of Costello , 136 A.D.3d 1028, 26 N.Y.S.3d 545 (2d Dept. 2016) ].
Although the "Military Testamentary Instrument Self-Proving Affidavit" does not mimic New York's official form, the use of official forms is not mandatory. Rather, the use of an official
form merely triggers SCPA § 106, which requires every Surrogate's Court to accept the official forms for filing. While this safe harbor provision creates a significant incentive to use the official forms, a legally sufficient document will not be rejected simply because it does not follow the official form. To do otherwise would place form over substance. In any event, to the extent there is a question as to whether the military self-proving affidavit is sufficient, the failure to produce a self-proving affidavit does not preclude the presumption of regularity from attaching to the proffered instrument because the attestation clause is complete and the circumstances corroborate due execution. [ Matter of Shapiro , 121 A.D.3d 1454, 995 N.Y.S.2d 805 (3d Dept. 2014) ].2
Finally, even if compliance with New York's rules of execution and attestation had not been established, the proffered instrument would still be admitted to probate on the separate and distinct grounds that it was properly executed as a Military Testamentary Instrument. As such, it is exempt from the requirements of form and formality under New York
law, and has the same force and effect as a testamentary instrument that was prepared and executed in compliance with New York's rules of execution and attestation. [ 10 USC § 1044d(a) ].
Specifically, as part of the National Defense Authorization Act for 2001, Congress created the Military Testamentary Instrument. When prepared and executed in accordance with federal law and the applicable Department of Defense policies, the proponent of a military will is relieved of any obligation to demonstrate that the instrument was duly executed in compliance with state law formalities. [ 10 USC § 1044d(a) ; Department of Defense Directive 1350.4, April 28, 2001].
To qualify for this exempt status, certain federal statutory and regulatory formalities must be followed:
The instrument must bear a Military Testamentary Preamble in the form provided by the Department of Defense Directive;
The instrument must be executed by a person who is eligible for military legal assistance (including active duty and retired members of the armed forces, and their dependents);
The execution of the instrument must be notarized by a military legal assistance counsel, or by a notary who is supervised by military legal assistance counsel;
The instrument must be executed in the presence of at least two disinterested witnesses (in addition to the notary), each of whom must attest to witnessing the testator's execution by signing the instrument; and
The instrument must be accompanied by a Military Testamentary Instrument Self-Proving...
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...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 probat......