Although much has been written on the issues of testamentary capacity and undue influence, decisions addressed to the preparation and execution of a will, particularly in the context of an uncontested proceeding, while instructive, are less often the subjects of commentary. This month’s column will discuss some of these opinions, as well as a recent opinion by the Appellate Division, Fourth Department, regarding the construction of a will.
Attesting Witness/Beneficiary
Over the past several years, Surrogates throughout the state have addressed the provisions of EPTL 3-3.2 as they relate to the situation where an attesting witness is also a beneficiary under the propounded instrument. The decisions in Matter of Margolis, NYLJ, Feb. 23, 2007, at p. 3 (Sur. Ct. New York County), Matter of Maset, NYLJ, Dec. 1, 2009, at p. 29 (Sur. Ct. Dutchess County), and Matter of Altstedter, NYLJ, Jan. 2, 2013, at p. 18 (Sur. Ct. Suffolk County) each provide instruction regarding the application and scope of the statute, as well as possible avenues available in order to avoid its harsh effects on the unsuspecting witness.
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