In re Kessler, 2022-50314

CourtNew York Surrogate Court
Writing for the CourtPeter J. Kelly, J.
PartiesProbate Proceeding, Will of Heinrich Kessler a/k/a HENRY KESSLER, HENRY PHILLIP KESSLER, Deceased.
Decision Date20 April 2022
Docket Number2022-50314,File 2021-3715

Probate Proceeding, Will of Heinrich Kessler a/k/a HENRY KESSLER, HENRY PHILLIP KESSLER, Deceased.

No. 2022-50314

File No. 2021-3715

Surrogate's Court, Queens County

April 20, 2022


Unpublished Opinion

Peter J. Kelly, J.

In this unopposed proceeding the petitioners seek to have an instrument dated January 1, 2017 admitted to probate as decedent's Last Will and Testament and for the issuance of letters of administration c.t.a. The single-page instrument appears to be self-drawn and contains the original signature of the decedent and that of two witnesses. The word "Instructions" appears at the top of the page. Neither the terms "Will" nor "Testament" appear on the document.

EPTL 1-2.19(a) provides as follows:

A will is an oral declaration or written instrument, made as prescribed by 3-2.1 or 3-2.2 to take effect upon death whereby a person disposes of property or directs how it shall not be disposed of, dispose of his body or any part thereof exercises a power, appoints a fiduciary or makes any other provision for the administration of his estate, and which is revocable during his lifetime

The mere fact, therefore, that the instrument in this case is entitled "Instructions" as opposed to "Last Will and Testament" is not determinative. Nor is the instrument's failure to designate a fiduciary controlling, since statutory mechanisms exist to supply a fiduciary for an estate when, as here, an instrument fails in this regard (SCPA 1418). Essentially, and most importantly, the instrument must be "testamentary in its character" and that is entirely contingent upon its substance, not its form (see In re Davis' Will, 45 Misc. 557 [Sur Ct, Saratoga County 1904]).

The proffered instrument lists the decedent's assets and directs, inter alia, that the decedent's savings and checking accounts are "to be divided evenly" at his death among his granddaughters, the within petitioners. Additionally, the decedent sets forth his wishes regarding the disposition of his remains. Therefore, the instrument, containing directives that are to take effect upon decedent's death by its terms, plainly falls within the definition of a will as contemplated by the EPTL.

Furthermore, upon review of the record, the Court finds that the instrument was duly executed in conformity with the requirements set forth in EPTL 3-2.1 and that the decedent was in all respects competent to make a will and free of restraint.

Accordingly, the instrument is...

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