• When Attesting Witnesses Forget
  • September 11, 2003
  • Law Firm: Rivkin Radler LLP - Uniondale Office
  • There are a number of requirements that need to be met for a person's will to be effective under New York law. For example, the person signing the will (known as the "testator") generally must do so in the presence of witnesses. This helps to ensure the validity of the signed document.

    What happens, however, if the testator dies and the witnesses are unable to recall the circumstances of the will signing? The answer is that except in unusual circumstances, the will still should be admitted to probate.

    Several years ago, Bertha A. Collins died and William Mayne offered a will dated January 17, 1977, in which Mrs. Collins left $1,000 to her nephews, $100 to her sister-in-law and the remainder to Mayne, her "friend and advisor." The will contained a printed form attestation clause beneath which appeared the signatures of two witnesses, Mary Pedaci and Richard H. Skellen.

    At the Surrogate's Court hearing, Pedaci, an assistant manager at a bank, was shown the will and identified both her signature and Skellen's signature, but she had no recollection of the circumstances surrounding the will's execution. Skellen, the bank's manager, testified that he recalled signing his name to the document, that both of the attesting witnesses "were right there," and that he had in his mind "an older lady." Skellen, who had witnessed a number of wills previously, further recalled that he had read the heading on the instrument, "Will and Testament."

    Mrs. Collins' nephews asked the Surrogate to dismiss Mayne's petition to probate the will on the ground that he had not presented sufficient proof of due execution. The case reached New York's highest court, the Court of Appeals, which ruled that a will may be admitted to probate even though both attesting witnesses may not be able to recall the will execution.

    To be sure, the Court stated, the testimony of the attesting witnesses was entitled to great weight and their failure to recollect the event might be significant in determining whether the formalities of execution were followed. The Court added that in this case, however, there was a great deal of evidence to prove the will. This included testimony of Mrs. Collins' physician that she had asked him to examine her to determine her mental and physical condition because, she told him, she intended to make a will that day, and that he had found her condition to be good. It also included the testimony of a legal secretary and notary who testified that Mrs. Collins' signature on the will was genuine.

    In another case, a person contended that a testator's will had not been duly executed because the execution ceremony had been performed in English and one of the witnesses did not fully understand English at that time. The same witness could not recall the events of the execution when he testified at the hearing to determine whether the will had been duly executed.

    The court nevertheless found that the will had been properly executed in this case, too. The court pointed out that the attorney who had drafted the will, who also was an attesting witness, had testified that the legal requirements for a valid will had been complied with. Moreover, the court said, the witness whose memory had failed recognized his signature and demonstrated that, although he did not remember the execution ceremony, he knew about the terms of the will. The court concluded by noting that the execution ceremony had been supervised by an attorney and said that it therefore would presume that the ceremony had complied with the essential requirements of the law.