attestation clause in New York

2026Failing to "remember the details of the execution ceremony is 'not the same as testifying that the formalities described in the attestation clause did not occur' " ( Matter of Leach , 3 AD3d 763, 765 [3d Dept 2004], quoting Matter of Ruso, 212 AD2d 846, 847 [3d Dept 1995]).However, a failure of the attesting witnesses' recollection "intensifies the care and vigilance that must be exercised in examining the remaining evidence" ( Matter of Collins , 60 NY2d 466, 473 [1983], citing Matter of Kellum, 52 NY 517, 519 [1873]).

2026Failing to "remember the details of the execution ceremony is 'not the same as testifying that the formalities described in the attestation clause did not occur' " ( Matter of Leach , 3 AD3d 763, 765 [3d Dept 2004], quoting Matter of Ruso, 212 AD2d 846, 847 [3d Dept 1995]).However, a failure of the attesting witnesses' recollection "intensifies the care and vigilance that must be exercised in examining the remaining evidence" ( Matter of Collins , 60 NY2d 466, 473 [1983], citing Matter of Kellum, 52 NY 517, 519 [1873]).

2026Failing to "remember the details of the execution ceremony is 'not the same as testifying that the formalities described in the attestation clause did not occur' " ( Matter of Leach , 3 AD3d 763, 765 [3d Dept 2004], quoting Matter of Ruso, 212 AD2d 846, 847 [3d Dept 1995]).However, a failure of the attesting witnesses' recollection "intensifies the care and vigilance that must be exercised in examining the remaining evidence" ( Matter of Collins , 60 NY2d 466, 473 [1983], citing Matter of Kellum, 52 NY 517, 519 [1873]).

2026Failing to "remember the details of the execution ceremony is 'not the same as testifying that the formalities described in the attestation clause did not occur' " ( Matter of Leach , 3 AD3d 763, 765 [3d Dept 2004], quoting Matter of Ruso, 212 AD2d 846, 847 [3d Dept 1995]).However, a failure of the attesting witnesses' recollection "intensifies the care and vigilance that must be exercised in examining the remaining evidence" ( Matter of Collins , 60 NY2d 466, 473 [1983], citing Matter of Kellum, 52 NY 517, 519 [1873]).

2019"If the attestation clause is full and the signatures genuine and the circumstances corroborative of due execution, and no evidence disproving a compliance in any particular, the presumption may be lawfully indulged that all the provisions of the statute were complied with, although the witnesses are unable to recollect the [*2]execution or what took place at the time" ( Matter of Kellum , 52 NY 517, 519 ; see Matter of Collins , 60 NY2d at 471 ; Matter of Shapiro , 65 AD3d at 791 ).

2014As we previously observed, “[i]f the attestation clause is full and the signatures genuine and the circumstances corroborative of due execution, and no evidence disproving a compliance in any particular, the presumption may be lawfully indulged that all the provisions of the statute were complied with, although the witnesses are unable to recollect the execution or what took place at the time” (Matter of Shapiro, 65 AD3d at 791 [internal quotation marks and citations omitted]).

2014Next, respondent maintains that Surrogate’s Court erred in instructing the jury that a presumption arises that a will has been properly executed where the execution was supervised by an attorney who drafted the document (see Matter of Buchting, 111 AD3d 1114 , 1115-1116 [2013]; Matter of Scaccia, 66 AD3d 1247, 1250-1251 [2009]; Matter of Pilon, 9 AD3d 771, 772 [2004]; Matter of Leach, 3 AD3d 763, 764 [2004]; PJI 7:45.2).

2014Next, respondent maintains that Surrogate’s Court erred in instructing the jury that a presumption arises that a will has been properly executed where the execution was supervised by an attorney who drafted the document (see Matter of Buchting, 111 AD3d 1114 , 1115-1116 [2013]; Matter of Scaccia, 66 AD3d 1247, 1250-1251 [2009]; Matter of Pilon, 9 AD3d 771, 772 [2004]; Matter of Leach, 3 AD3d 763, 764 [2004]; PJI 7:45.2).

2018In addition, "a full attestation clause regularly authenticated . . . is entitled to great weight" ( Matter of Cottrell, 95 NY 329, 335 [1884]), and a self-proving affidavit raises a presumption of "due execution" ( Matter of Schlaeger, 74 AD3d 405, 407 [1st Dept 2010]).

2005To the contrary, the proponent has met his burden of proof on the issue of due execution where, as here, the testimony of the attesting witness is buttressed both by the inference of due execution that arises from the supervision of the execution ceremony by an attorney (2 NY PJI2d 1162-1163 [2004], citing Matter of Kindberg, 207 NY 220 [1912]; Matter of Cottrell, 95 NY 329 [1884]; Matter of Murtlow, 258 AD2d 686 [1999]; Matter of Coniglio, 242 AD2d 901 [1997]; Matter of Esberg, 215 AD2d 655 [1995]; Matter of Hedges, 100 AD2d 586 [1984]; Matter of Morgan, 32 Misc 2d 628 [1961]; Matter of Brown

2025"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 Robbins , 206 AD3d 739 , 740 [internal quotation marks omitted]; see EPTL 3-2.1[a]; Matter of Fiorentino , 224 AD3d 685 , 686). "[W]here the propounded will is accompanied by an attestation clause and a self-proving affidavit, a presumption of compliance with the statutory requirements arises" ( Matter of Sundmacher , 192 AD3d 898, 899 ; see Matter of Mele , 113 AD3d 858 , 860).

2024Turning to the branch of the motion to dismiss the objections based upon due execution, submission of the offered instrument which includes an attestation clause and a contemporaneous self-proving affidavit affords the instrument a presumption of compliance with the statutory formalities of EPTL 3-2.1 ( see Matter of Sabatelli , 161 AD3d 872 [2d Dept 2018]; Matter of Mele , 113 AD3d 858 [2d Dept 2014]).

2024Submission of the attestation clause and the contemporaneous self-proving affidavit—which expressly states that the testator was of "sound and disposing mind and memory and competent in every respect"—satisfies this initial burden ( see Matter of Rottkamp , 95 AD3d 1338 , 1339 [2d Dept 2012]).

2024Submission of the attestation clause and the contemporaneous self-proving affidavit—which expressly states that the testator was of "sound and disposing mind and memory and competent in every respect"—satisfies this initial burden ( see Matter of Rottkamp , 95 AD3d 1338 , 1339 [2d Dept 2012]).

2024In addition, compliance with the publication requirement may be inferred from the conduct of the testator during the execution ceremony, and here, the witnesses testified that they discussed the terms of the will with the testator and it was clear from the circumstances that the testator was there to execute her will (see Matter of Turell, 166 NY 330, 337 [1901] ["In all cases, a substantial compliance will be sufficient and no particular form of words is required, or is necessary, to effect publication"]; Matter of Pirozzi, 238 AD2d 833 [3d Dept 1997] [Publication can be through words or acti

2015However, Surrogate’s Court must nonetheless examine the attendant circumstances to determine the validity of the will, and it is well established that the attestation clause standing alone will not suffice to meet the proponent’s burden of demonstrating due execution by a preponderance of the evidence if affirmative proof reveals that the required elements were lacking (see Matter of Turell, 166 NY 330, 337 [1901]; Matter of Falk, 47 AD3d 21, 26 [2007], lv denied 10 NY3d 702 [2008]).

2026Moreover, the attestation clause and affidavits of the witnesses give rise to the presumption that decedent was of sound mind, memory, and understanding, and was not incompetent ( see Matter of Schlaeger , 74 AD3d 405, 406 [1st Dept 2010]).

2024The witnesses' attestation clause and their contemporaneous affidavit establish that the instrument was executed in accordance with the statutory mandates and their testimony during their SCPA 1404 examinations confirmed that they saw the testator execute the instrument at the end, and that they observed each other executing the attestation clause (see Matter ofSchlaeger, 74 AD3d 405 [1st Dept 2010] [attestation clause of will gave rise to presumption of compliance with statutory probate provisions]; see also Matter of Llewellyn, 135 AD3d at 500).

2026Failing to "remember the details of the execution ceremony is 'not the same as testifying that the formalities described in the attestation clause did not occur' " ( Matter of Leach , 3 AD3d 763, 765 [3d Dept 2004], quoting Matter of Ruso, 212 AD2d 846, 847 [3d Dept 1995]).However, a failure of the attesting witnesses' recollection "intensifies the care and vigilance that must be exercised in examining the remaining evidence" ( Matter of Collins , 60 NY2d 466, 473 [1983], citing Matter of Kellum, 52 NY 517, 519 [1873]).

2026Failing to "remember the details of the execution ceremony is 'not the same as testifying that the formalities described in the attestation clause did not occur' " ( Matter of Leach , 3 AD3d 763, 765 [3d Dept 2004], quoting Matter of Ruso, 212 AD2d 846, 847 [3d Dept 1995]).However, a failure of the attesting witnesses' recollection "intensifies the care and vigilance that must be exercised in examining the remaining evidence" ( Matter of Collins , 60 NY2d 466, 473 [1983], citing Matter of Kellum, 52 NY 517, 519 [1873]).

1962(Orser v. Orser, 24 N. Y. 51 .) Under similar circumstances as here, when a complete attestation clause is in existence, the court has held there is a presumption of compliance with the necessary formalities of execution.

1936Even without an attestation clause, facts may be shown constituting such presumptive evidence, and, though the probative force of such facts may or may not be as strong as that of an attestation clause, the difference is in degree or weight, and not in kind.” (Matter of Abel, 136 App. Div. 788, 792 [2d Dept.].) “ The evidence which such a certificate would afford would, in most cases, be sufficient to overcome the mere want of recollection of a living witness; and should the testimony of the latter amount to a positive denial, the relative weight of the conflicting proof would then depend upon

2005To the contrary, the proponent has met his burden of proof on the issue of due execution where, as here, the testimony of the attesting witness is buttressed both by the inference of due execution that arises from the supervision of the execution ceremony by an attorney (2 NY PJI2d 1162-1163 [2004], citing Matter of Kindberg, 207 NY 220 [1912]; Matter of Cottrell, 95 NY 329 [1884]; Matter of Murtlow, 258 AD2d 686 [1999]; Matter of Coniglio, 242 AD2d 901 [1997]; Matter of Esberg, 215 AD2d 655 [1995]; Matter of Hedges, 100 AD2d 586 [1984]; Matter of Morgan, 32 Misc 2d 628 [1961]; Matter of Brown

1995"The attestation clause is always some proof of due execution of the will” (Matter of Nelson, 141 NY 152, 156 [citation omitted]), and the courts have recognized an attestation clause "as prima facie evidence of the facts certified by it” (Matter of Sizer, 129 App Div 7, 9 , affd 195 NY 528 ).

2016Under these circumstances, the attestation clause cannot carry any presumption that the will was properly executed (see Woolley v Woolley, 95 NY 231, 236 [1884]; Matter of Malley, 6 Misc 2d 31, 32 [Sur Ct, Westchester County 1957]; Matter of King, 130 Misc 907, 911 [Sur Ct, Schoharie County 1927]; Matter of Hitchler, 25 Misc 365, 367 [Sur Ct, Erie County 1898]).

1933(Matter of Marley, 140 App. Div. 823, 825, 826 ; Remsen v. Brinckerhoff, 26 Wend. 325, 337 ; Matter of Shirley, 134 Misc. 413, 416 ; Matter of Truelsen, 130 id. 172; Matter of Paez, 107 id. 586.) We cannot close our eyes to any one of the four requirements, for by so doing “ the statute prescribing the formalities with which wills should be executed, would be substantially nullified and its wise purpose defeated.” (Woolley v. Woolley, 95 N. Y. 231, 236 .) In Lewis v. Lewis ( 11 N. Y. 220 ) the will in question was signed by decedent in his own handwriting, purported to have been witnessed by t

1995"The attestation clause is always some proof of due execution of the will” (Matter of Nelson, 141 NY 152, 156 [citation omitted]), and the courts have recognized an attestation clause "as prima facie evidence of the facts certified by it” (Matter of Sizer, 129 App Div 7, 9 , affd 195 NY 528 ).

1976Alden, a resident of the Village of Bath, County of Steuben, State of New York, hereby revoking all prior wills, do make, publish and declare this instrument as my last will and testament * * * The foregoing instrument, consisting of one page and this page, was on the 28th day of June, 1974 signed by the above-named testator, Floyd Alden, in our presence at his request, and in his presence and in the presence of each other, we have hereunto subscribed our names as witnesses.” This attestation clause, read aloud, provides persuasive evidence of the actual occurrence of the facts recited (Matter

1933(Matter of Marley, 140 App. Div. 823, 825, 826 ; Remsen v. Brinckerhoff, 26 Wend. 325, 337 ; Matter of Shirley, 134 Misc. 413, 416 ; Matter of Truelsen, 130 id. 172; Matter of Paez, 107 id. 586.) We cannot close our eyes to any one of the four requirements, for by so doing “ the statute prescribing the formalities with which wills should be executed, would be substantially nullified and its wise purpose defeated.” (Woolley v. Woolley, 95 N. Y. 231, 236 .) In Lewis v. Lewis ( 11 N. Y. 220 ) the will in question was signed by decedent in his own handwriting, purported to have been witnessed by t

1924(See, also, Lewis v. Lewis, 11 N. Y. 220 , and Matter of Keeffe, 155 App. Div. 575 ; affd., 209 N. Y. 535 , for statement of rule that if signature is acknowledged it must be visible.) In Matter of Laudy ( 161 N. Y. 429 ) testator signed the will immediately beneath the attestation clause and one witness testified there was a signature, or writing, just above where he signed.

1938We dissent and vote to affirm, on authority of Matter of Sizer ( 129 App. Div. 7 ; affd., 195 N. Y. 528 ) and Matter of Abel ( 136 App. Div. 788 ), and on the further ground that the testimony adduced by the contestant, so far as credited, considered in connection with the presumptions arising from the attestation clause, adequately justified the surrogate’s determination that he was satisfied with the genuineness of the will, the validity of its execution, decedent’s understanding of the will, and the testamentary capacity of the decedent.

1936Even without an attestation clause, facts may be shown constituting such presumptive evidence, and, though the probative force of such facts may or may not be as strong as that of an attestation clause, the difference is in degree or weight, and not in kind.” (Matter of Abel, 136 App. Div. 788, 792 [2d Dept.].) “ The evidence which such a certificate would afford would, in most cases, be sufficient to overcome the mere want of recollection of a living witness; and should the testimony of the latter amount to a positive denial, the relative weight of the conflicting proof would then depend upon

1876In Willis v. Mott ( 36 N. Y., 486 ), the proof of subscription was made out, in part, from the attestation clause, which was explicit that an acknowledgment of the subscription relied upon was made to the witnesses.

1872Judge Desto, in this case says: “ As to the other particulars, the seeing the signature made by the witnesses, or their hearing it acknowledged, the publication or the declaration by the testator that it is his last will and testament, and his request that they shall sign the will, these do not require or admit of any record or written memorial other than the attestation clause, and must depend upon the declaration of witnesses, and such allowances and inferences on account of want of memory may be made as the justice of the case, common experience and the rules of law present or require.” In