In re the Estate of Robbes
29 Misc.2d 358, 1960 N.Y. Misc. LEXIS 2001, 211 N.Y.S.2d 830 (1960)
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Rule of Law:
In New York, a codicil cannot validate a will or an alteration to a will that was initially invalid due to a failure to observe statutory execution formalities, nor does it automatically incorporate unattested alterations unless the testator's clear and explicit intention to confirm the altered will is demonstrated.
Facts:
- The testatrix executed a will that named her cousin and her attorney as executors.
- At a later, unspecified date, the testatrix crossed out the attorney's name in the will and inserted the name of a nephew as co-executor, an alteration that was not attested as required by statute.
- On August 30, 1958, the testatrix executed a first codicil in France, which revoked a bequest to Pierre Bobbes, but did not describe a particular will or refer to the change in executors.
- On April 22, 1959, the testatrix executed a second codicil in New York, which contained substantially the same text as the first codicil and also did not mention the executor change.
- The unattested insertion and obliteration of the executor's name were in the handwriting of the testatrix and had occurred prior to the execution of the New York codicil.
- Prior to the second codicil, the will in its revised form had been seen by the person who prepared the text of the codicil for the testatrix.
Procedural Posture:
- The testatrix died, and the proponent of her will offered the second codicil for probate.
- The Surrogate's Court (the trial court/court of first instance for wills and estates) considered whether the unattested alteration to the will, which changed the named executor, was validated by the subsequent execution of a codicil.
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Issue:
Does the execution of a properly attested codicil, made after an unattested interlineation altering the named executor in an otherwise valid will, incorporate and re-execute the will as amended, thereby validating the alteration?
Opinions:
Majority - S. Samuel Di Falco, S.
No, the execution of the codicil does not validate the unattested alteration to the will. The court held that under New York law, a codicil can only validate a will that was originally executed in accordance with statutory provisions but has, for some reason, become inoperative. It cannot validate a will or a specific alteration that was never properly executed due to a failure to observe statutory formalities. The court cited Matter of Emmons and Matter of Lawler which reaffirmed this strict New York rule, distinguishing it from rules in other jurisdictions. Furthermore, even if the court were to apply the rule from other jurisdictions, which treats the issue as a matter of construction regarding the testator's intention to confirm the altered will, the proponent failed to demonstrate such an intent. The testatrix's codicils dealt with an unrelated bequest, did not refer to her will by date, and did not explicitly confirm it. There was no specific mention or clear indication in the codicil that she intended to confirm the alteration of the executor's name. The court found no assurance that the unattested change was a 'firm and deliberate decision' rather than a 'tentative and changeable one.' Therefore, the court concluded that the testatrix intended to confirm the will as formally executed, not as informally altered. The will was admitted to probate in its original form regarding the fourth paragraph (concerning executors), while a change in a different paragraph (third) made prior to the original will's execution was deemed valid.
Analysis:
This case strongly reinforces New York's strict adherence to statutory formalities for will execution and alteration, rejecting the doctrine of incorporation by reference for documents or changes not executed in compliance with the Decedent Estate Law. It clearly distinguishes between a will that was never validly executed (or an alteration never validly attested) and one that was initially valid but became inoperative. The decision places a high burden on proponents to demonstrate a testator's clear and explicit intent to incorporate unattested alterations when a later codicil is executed, emphasizing that general references or unrelated provisions in a codicil are insufficient. This precedent underscores the importance of proper attestation for any material changes to a will to ensure their legal validity.
