Petitioner seeks to probate a handwritten instrument dated March 18, 2020 as a holographic will and for the issuance of letters of administration c.t.a. During the onset of the Covid-19 pandemic, the decedent was admitted to New York Presbyterian Queens Hospital on March 14, 2020 due to symptoms she was exhibiting from an ongoing battle with cancer. She died in the hospital eight days later on March 22, 2020 survived by her sole distributee spouse Steven. Proffered for probate is an instrument purportedly handwritten by decedent in the hospital on March 18, 2020 naming her niece Maria as sole beneficiary. The instrument is on a single piece of folded plain white paper and primarily consists of one dispositive sentence, handwritten in black ink on the top half thereof, followed by the name of two banks, the signature of the decedent, and the signature and acknowledgment of a notary public. It reads as follows: State of New York County of Queens I Juanita Tedeschi Koutsakos being of sound body and mind bequest my worldly possessions to my niece Maria Parrella. Chase Bank, Ridgewood + Savings. Juanita Tedeschi Koutsakos {signed} Sworn to before me this 18 March 2020 Colleen B ***** {signed} {Notary Public Stamp, State on New York} {Registration Number} The instrument disinheriting Steven bequeaths Maria an estate alleged to consist of $200,000.00. As for the circumstances of the execution, Maria submits an affidavit stating that on March 17, 2020 decedent asked her to find a lawyer to draft a will bequeathing Maria the entire estate. The same day, Maria called an attorney who said it was her standard practice to meet with a testator before drafting a will and that she was not comfortable going to the hospital out of concern for exposure to coronavirus. That attorney now submits an affirmation confirming that she refused to draft the document as requested under the circumstances. Maria states that she and a cousin tried contacting other attorneys on March 17 and 18 to draft a will for decedent but their efforts were likewise unsuccessful. At some point Maria was able to enlist the assistance of notary public Colleen who agreed to go to the hospital on March 18 to act as a notary. Colleen’s acknowledgment appears on the instrument as above. Additionally, an unattached, separate page of folded plain white paper titled “All Purpose Acknowledgment,” which is placed under the proffered document, is submitted. It states, in substance, that decedent appeared before notary Colleen on March 18, 2020, that decedent provided satisfactory proof of her name, and that decedent acknowledged to the notary that her signature appears thereon. Submitted with the petition and the foregoing document are a purported waiver and consent by Steven and an affidavit bearing Steven’s name proving the handwriting of decedent. A full signature of Steven’s name appears on the affidavit proving decedent’s handwriting which is dated September 9, 2020. However, the waiver and consent, which is dated three months later on December 8, 2020, is signed above Steven’s name with only an “X”. Petitioner’s affidavit states that Steven suffers from severe arthritis and is currently only able to sign that way. Although the signatures are inconsistent, the court is cognizant that a signature may be made by any memorandum, mark or signature, written or printed on any instrument with intent to execute or authenticate it (General Construction Law §46). Turning to the proffered instrument, a will is considered holographic when it is written entirely in the handwriting of the testator, and is not executed and attested in accordance with the formalities prescribed by EPTL 3-2.1 (EPTL 3-2.2 [a]). In New York, a holographic will is only valid if made by: (1) A member of the armed forces of the United States while in actual military or naval service during a war, declared or undeclared, or other armed conflict in which members of the armed forces are engaged. (2) A person who serves with or accompanies an armed force engaged in actual military or naval service during such war or other armed conflict. (3) A mariner while at sea. (EPTL 3-2.2 [b]). Before a holographic will under this section is to be admitted to probate, its execution and the handwriting of the testator must be proved (SCPA §1404 [3]). Holographic wills that are made in the handwriting of persons other than those who qualify under EPTL 3-2.2, however, are not valid and must meet the same requirements of due execution in accordance with EPTL 3-2.1 (see Estate of Shindell, 60 AD2d 393 (1st Dept 1977), affd 55 NY2d 655 [1981]; Estate of Sadlon, 1998 NYLJ LEXIS 3865 [Sur Ct, Westchester County 1998]; Estate of Engelken, 103 Misc 2d 772, 774 (Sur Ct, Nassau County 1980]); Will of Murphy, 70 Misc 2d 516 [Sur Ct, Kings County 1972]; see also Matter of Kranz-Marks, 67 Misc 3d 1226[A] [Sur Ct, Orange County 2020]; Will of Stephen Evans, 2018 NYLJ LEXIS 2760 [Sur Ct, New York County 2018]; Will of Bilde, 2017 NYLJ LEXIS 1519 [Sur Ct, Suffolk County 2017]; Estate of Realuyo v. Realuyo, 2013 NY Misc LEXIS 6927 [Sup Ct, New York County 2013]; Matter of Bouvier, 2012 NY Misc LEXIS 1080 [Sur Ct, Oneida County 2012]; Estate of Rudolph McConney, 2004 NYLJ LEXIS 4719 [Sur Ct, Bronx County 2004]; see generally 3 Warren’s Heaton, Surrogate’s Court Practice §41.13 [5][a] at 41-207 [7th ed. Matthew Bender]). Notwithstanding the proof submitted of decedent’s handwriting and signature, the acknowledgment by the notary and the consent of the sole distributee, the submitted instrument cannot be admitted to probate as a holographic will since it is clear that decedent was not a member of any of the classes of persons entitled to make such a will as set forth in EPTL 3-2.2 (b)(1-3). While acknowledging the limitations set forth in the statute, counsel for petitioner submits an affirmation with a supporting legal memorandum arguing that the court should grant a narrow, “exigent circumstances exception” to the holographic will statute. In support, counsel contends that the instrument was executed in a hospital at the beginning of the Covid-19 pandemic, citing to the State disaster emergency order issued by the Governor on March 7 (Executive Order No. 202 [9 NYCRR §8.202]); and another order issued on March 16, 2020 (Executive Order No. 202.4 [9 NYCRR §8.202.4]) allowing hospitals to increase capacity and directing every school in the State of New York to close for a period of two weeks commencing on March 18,2020; and a third order issued on March 20, 2020 (Executive Order No. 202.8 [9 NYCRR §8.202.8]) directing all nonessential businesses to reduce in-person workforces by 100 percent no later than March 22, 2020 at 8pm. Counsel points out that decedent was not able to have the will witnessed utilizing audio-visual technology since that option was not available until the Governor issued an order on April 7, 2020 (Executive Order No. 202.14 [9 NYCRR §8.202.14]) which set forth the specific conditions to satisfy the act of witnessing such wills. Counsel also contends that such an exception aligns with the public policy of the holographic will statute which is to allow a person in extremely perilous and urgent circumstances the limited opportunity to make a formal will (citing to Estate of Zaiac, 162 Misc 643, 654 [Sur Ct, Kings County 1937], mod255 AD 709 [2d Dept 1938], revd 279 NY 545 [1939]); Matter of McGarry, 242 Mich 287, 290 [Michigan Supreme Court 1928]). In further support, the petitioner points out that a New Jersey statute (NJSA 3B:3-3 [1982]) and the Uniform Probate Code §2-503 have done away with the limitation of holographic wills to members of the armed forces, mariners or accompanying persons during war or other armed conflict. Unfortunately, and fundamentally however, counsel fatally fails to grasp the difference between judicial and legislative functions. The tenuous legal arguments set forth could not possibly legitimize nor provide a proper foundation for the relief requested. What petitioner seeks is tantamount to a redrafting of the holographic will statute on the court’s own initiative by the addition of a new, ill defined subdivision of eligible persons. It is fundamental that courts are constrained by the rules of statutory construction which require that when the language of a statute is clear and unambiguous, the words should be literally construed in accordance with their plain and obvious meaning, without resorting to “an artificial or forced construction” by the court (McKinney’s Cons Laws of NY, Book 1, Statutes §94; see Majewski v. Broadalbin-Perth Cent. Sch. Dist., 91 NY2d 577, 583 [1998], quoting Tompkins v. Hunter, 149 NY 117, 122-123 [1896]; People v. Munoz, 207 AD2d 418, 419 [2d Dept 1994], appeal denied 84 NY2d 938 [1994]). Furthermore, such a legislatively sanctioned approach is implicitly supported by the legal authorities cited by petitioner. The Court of Appeals in the Zaiac case upheld the Appellate Division’s denial of probate to the unattested holographic will of a soldier, and reversed the denial of probate to the nuncupative will made upon the soldier’s oral statements to his platoon sergeant and a fellow soldier. It remitted the matter to the Surrogate’s Court with instructions to admit the nuncupative will to probate. The McGarry case is a decision by the Michigan Supreme Court interpreting a Michigan statute. The New Jersey authority cited by petitioner is a legislatively enacted statute, and the provisions of the Uniform Probate Code would have to be endorsed and approved by the legislature to be effective. Finally, although counsel’s arguments evoke some degree of sympathy as they are focused on the physical condition of the decedent, the court would be remiss if it failed to point out the countervailing context of the situation at hand. Foremost, although it is a basic fact that one need not retain an attorney to make a will, Maria took upon herself the task of finding an attorney within a short period who would draft a will for a hospitalized patient upon terms only conveyed by Maria, which essentially provided that Maria would inherit the entirety of decedent’s estate to the exclusion of the spouse. To avoid the obvious pitfalls of fraud and undue influence and address important issues such as the existence of a statutory elective share, it is the custom and practice of attorneys to meet with the testator prior to drafting a will to ascertain capacity and testamentary intent and provide relevant legal advice. In fact, it would have bordered on malpractice if counsel were to draft a document which disinherits a spouse on short notice simply according to the instruction of a third party without speaking with the testator. Therefore, the failure of Maria’s quixotic search is neither surprising nor a reason for the court to deviate from the statutory scheme established for holographic wills. Furthermore, although not endorsed by the court as a routine course of action, decedent, with or without Maria’s assistance, could have utilized an on-line legal service as an avenue to obtain a will that could have been properly executed with the instructions provided. Finally, it is unclearwhy the distribution of the estate’s assets to Maria could not be achieved in another manner. As the proffered instrument does not satisfy the due execution requirement of EPTL §3-2.1 and petitioner has not demonstrated entitlement to relief under EPTL §3-2.2, the instrument is denied probate and the petition is dismissed. This is the Decision and Decree of this court. The Clerk of the Court is directed to notify counsel for petitioner of this Decision and Decree. Dated: March 23, 2022
