In re the Estate of Falk
47 A.D. 3d 21, 845 N.Y.S.2d 287 (2007)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
The proponent of a will bears the burden of proving due execution by a preponderance of the evidence, and this burden is not satisfied, despite the presence of an attestation clause, when the testimony of the attesting witnesses is so rife with contradictions and inconsistencies that the court cannot conclude the statutory formalities were met.
Facts:
- Victoria Falk, an elderly, unmarried woman with no children, had a will drafted by her attorney, Joseph Fashing, on September 4, 2000.
- The will named Ruxandra Ghenovici, Falk's live-in caretaker for over nine years, as the primary beneficiary, leaving her Falk's house and the residuary estate.
- Fashing provided Falk with the unsigned will and oral and written instructions on how to have it witnessed, but he did not supervise the execution ceremony.
- Three employees of Falk's apartment building—Jose Mora, Fabian Rodriguez, and Linda Bahoritsch—signed the will's attestation clause as witnesses.
- The witnesses' accounts of the signing ceremony were highly contradictory regarding the location of the signing, who was present, and what Falk said or did.
- For example, Rodriguez claimed Ghenovici approached him alone in the building lobby, while Mora claimed he and Rodriguez went to Falk's apartment together to sign.
- Bahoritsch testified that Falk and Ghenovici came to her apartment, where Falk declared the document was her will.
- Victoria Falk died on September 13, 2002, leaving an estate valued between $425,000 and $500,000.
Procedural Posture:
- Petitioners Ruxandra Ghenovici and Joseph Fashing offered Victoria Falk's purported will for probate in the Surrogate’s Court, New York County.
- Objectants Pavel Hillel and Victoria Hillel Jacobs, the decedent's niece and nephew, filed objections to probate.
- Objectants withdrew initial claims of undue influence and fraud, proceeding to trial solely on the ground of lack of due execution.
- The Surrogate's Court conducted a nonjury trial to determine the validity of the will's execution.
- Following the trial, the Surrogate’s Court denied the petition for probate, concluding that the petitioners had failed to prove due execution.
- The petitioners (appellants) appealed the decree of the Surrogate's Court to the Appellate Division of the Supreme Court of New York, First Department.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a purported will satisfy the statutory requirements for due execution when the testimony of the attesting witnesses regarding the testator's publication of the will and acknowledgment of her signature is severely contradictory and inconsistent, despite the presence of a standard attestation clause?
Opinions:
Majority - Nardelli, J.
No. A purported will does not satisfy the statutory requirements for due execution when the witness testimony is overwhelmingly inconsistent and incredible. The proponent of a will has the burden to prove due execution by a preponderance of the evidence. While an attestation clause creates a presumption of regularity, it is not conclusive and can be rebutted. Here, the statutory requirements of publication (the testator declaring the document is her will) and acknowledgment (the testator stating the signature is hers) were not proven. The testimony of the three attesting witnesses—Mora, Bahoritsch, and Rodriguez—was riddled with contradictions regarding where, when, and how the will was executed. Their various sworn statements, depositions, and trial testimony were inconsistent not only with each other but also with their own prior accounts. Given these pervasive inconsistencies, the court could not find a 'meeting of the minds' between the testator and the witnesses. Therefore, the petitioners failed to meet their burden of proof, and the Surrogate's Court's finding that the witnesses were not credible was given deference.
Analysis:
This case strongly affirms the necessity of strict compliance with will execution formalities and serves as a cautionary tale for attorneys. It clarifies that an attestation clause, while creating a valuable presumption of due execution, cannot salvage a will when the underlying facts, as revealed through witness testimony, are chaotic and contradictory. The decision emphasizes the deference appellate courts give to trial courts on matters of witness credibility. For legal practice, it establishes a clear best practice: attorneys should directly supervise will executions to prevent procedural failures that can frustrate a testator's intent, and if they cannot, they must provide explicit, written instructions for the client to follow and confirm.
