Opinion
2011-839/E.
Decided August 26, 2011.
DePinto Nornes Associates, LLP, Attorneys for Petitioner, Melville, New York.
James G. Spiess, Esq., Guardian ad Litem, Riverhead, New York.
In this probate proceeding, petitioner requests that an instrument in writing dated December 18, 2008, be admitted to probate as the last will and testament of the above named decedent and that letters testamentary issue to petitioner.
Jurisdiction has been obtained over all persons listed in the petition as necessary parties. No one has appeared in opposition to any of the relief requested. A guardian ad litem was appointed to represent the interests of unknown distributees, heirs at law, and next of kin of decedent. The guardian ad litem has filed his report, in which he recommends that the will be admitted to probate and letters testamentary issue to petitioner.
It appears that the propounded instrument was duly executed and, at the time of execution, decedent was in all respects competent to make a will and not under any restraint. The genuineness of the will and the validity of its execution having been shown to the satisfaction of the court, probate is granted (SCPA 1408, EPTL 3-2.1).
The executor is, however, subject to the disclosure requirements of SCPA 2307-a. Having reviewed the record in connection herewith, it appears that the attorney/draftsman has provided a disclosure statement which purports to be in compliance with the aforesaid statute. The statute requires that the written disclosure be executed by the testator in the presence of at least one witness other than the executor-designee (SCPA 2307-a).
The written disclosure form presented raises two issues. First, although in compliance with the model form contained in the statute, it does not bear the signature of a "witness" as required by the statute, but rather, bears the signature and stamp of a notary, and indicates that the document was sworn to before the notary on December 19, 2008, the date of the will. Thus, the question presented is whether there is compliance with the statute, which calls for a witness, not a notary.
This question is answered in the affirmative. Indeed, it could be said that the function of a notary in most cases is not only to observe the signing of the document, but to verify and vouch for the identity of the signor. In short, having a notary act as a witness may, in fact, further insure the genuineness of the signature.
This issue was presented in Matter of Douglas, 193 Misc 623, which held that a witness to the execution of a will, who was also a notary public, and who affixed her seal as a notary, acted as an attesting witness and ". . . her status as such is unaffected by the notarial dressing . . ." ( See, also, Matter of Valente,, 166 NYS2d 452). In the case at bar, the status of the witness to the 2307-a affidavit is unaffected by the notarial dressing she added. The court, therefore, finds compliance with the statute.
The second issue is more discrete. It appears that the notary/witness is an attorney affiliated with the draftsperson/attorney/fiduciary designated in this will, raising the question as to what extent a witness to a 2307-a disclosure form may be affiliated with the nominated attorney/fiduciary so as to call into question whether the document is tainted by the self-interest of the witness and attorney-nominee. The statute itself just calls for the witness to be other than the nominated executor-designee; it sets forth no standard of relationship or affiliation that would define at what point a witness is no longer disinterested and, therefore, precluded from serving as a witness.
For practical purposes, in a law firm, any number of relationships exist (partner, associate, employee, etc.) that could, if imagination were the only criteria, suggest an almost infinite number of possible scenarios to explain why the witness signed the document. In fact, if open to such an approach, a law firm would be forced to seek a stranger to the firm in any scenario where a 2307-a disclosure form is required; the language of the statute imposes no such requirement. The court is more inclined to believe that the witness, who is an attorney licensed to practice law, provided what was expected by the statute: a confirmation that the testator considered, in a document separate from the will, his options in selecting a fiduciary and the ramifications of nominating an attorney to act as a fiduciary. While a better course of action may have dictated using someone other than an attorney affiliated with the nominated executor, nothing in the statute disqualifies the witness. That the selection of an attorney to serve as fiduciary was an independent and logical choice by the testator herein is buttressed by the fact that the will was witnessed by two persons other than the attorney/fiduciary and the notary on the disclosure form, and all beneficiaries are non-resident aliens and presumably incapable of acting as fiduciaries.
Accordingly, letters testamentary shall issue to David J. DePinto, upon qualification and without the posting of a bond, according to law. The commissions, if any, of the executor-designee shall not be limited to one-half of the statutory commissions pursuant to SCPA 2307-a, petitioner having complied with the disclosure requirements therein.
Decree signed.