The due execution of a will requires that the elements of EPTL 3-2.1 be complied with before the instrument is admitted to probate. However, only substantial compliance with the provisions of the statute need be shown in order for due execution to be found. The meaning and scope of this provision has been the subject of judicial decision in recent years as evidenced by the following opinions:

Signature at the End of the Document

The provisions of EPTL 3-2.1 require that the decedent sign a will at “the end” thereof. The meaning of this provision was discussed by the court in In re Mobley, N.Y.L.J. Mar. 20, 2009, at 35 (Sur. Ct. New York County), in which the court was presented with the issue of whether the propounded instrument should be denied probate due to the irregular order of the signatures of the testatrix and witnesses.

Specifically, after the dispositive provisions of the Will, and the appointment of the executrix, there appeared preprinted two lines intended for the date and the signature of the testatrix. Those lines, however, were blank. Below these two lines was a pre-printed attestation clause, to which the date and signature of attesting witnesses was appended. Following the attestation clause there appeared a preprinted affidavit of attesting witnesses containing the names, but not the signatures of the attesting witnesses. Rather, on one of the lines for a witness, there appeared the signature of the testatrix.

In finding that the Will had been duly executed, the court opined that a testamentary instrument can be admitted to probate even if the procedure for execution and attestation do not take place in the precise order established by statute. In this regard, the fact that the signatures of the witnesses appear before the testatrix’s signature does not invalidate a will. Further, the court held that although the testatrix did not affix her signature immediately after the dispositive provisions of the instrument, but instead after the attestation clause and the preprinted affidavit of attesting witnesses, the signature of the testatrix nevertheless appeared “at the end” of the instrument as required by the provisions of EPTL 3-2.1. Indeed, the court noted that all dispositive provisions appeared before the testatrix’s signature.

 Accordingly, probate of the instrument was granted.

Post-Death Signature of Witnesses Invalidates Will

In re Estate of Lederman, N.Y.L.J., May 22, 2002, p. 19, col. 5 (Sur. Ct., New York County), two of the residuary beneficiaries moved for summary judgment denying probate to a codicil that contained a substantial pre-residuary bequest. A Will and four codicils of the decedent were offered for probate. Under the Will and three of the codicils, the decedent made some minor pre-residuary bequests and bequeathed 90% of her residuary estate to her niece and nephew, and a charitable institution. These instruments were prepared by an attorney who supervised their execution.

The contested codicil was executed approximately 10 weeks before the decedent died, and was a one -page typewritten instrument, labeled “Codicil.” Pursuant to its terms, the sum of $300,000 was left to the decedent’s caretaker. Although the decedent signed the instrument, it was witnessed by only one person, who was designated as the executrix under a provision of the penultimate codicil. The witness stated that she prepared the codicil pursuant to the decedent’s instructions, and that the decedent had informed her that the bequest was to be a bonus to her caretaker.

The individual residuary beneficiaries moved for summary judgment on the ground that the codicil had not been properly executed in accordance with the provisions of EPTL 3-2.1, since only one witness had signed the instrument. The proponent acknowledged the deficiency in the instrument, but nevertheless maintained that it could be cured by her husband, who was present in the room at the time the codicil was executed. The proponent requested that her husband sign the instrument as a witness, albeit after the decedent’s death.

The court denied the application, and granted summary judgment in the movants’ favor, finding that a witness cannot effectively subscribe a Will after the testator has died. This principle is designed to prevent fraud. Furthermore, the court found that the second attestation proposed would be unavailing since it would not occur within the thirty day period prescribed by statute.


The due execution of a Will requires that the testator affix his name or acknowledge his signature to at least two attesting witnesses. The provisions of SCPA 1404 require that at least two of the attesting witnesses to the Will be produced before the court and examined before a Will is admitted to probate. When an attesting witness is also a beneficiary under a propounded Will the question arises as to whether the Will can nevertheless be admitted to probate, given the financial interest of the beneficiary in the instrument. Under such circumstances, the law provides that a Will may be admitted to probate, but the disposition to the witness/beneficiary shall be void, if the witness’ testimony is necessary to admit the Will to probate.

The foregoing principles were recently applied in a case of apparent first impression decided by the Surrogate’s Court, New York County, in In re Estate of Wu, NYLJ, April 27, 2009, p.19. Before the court was an application by the executor of the decedent’s estate for an order directing the decedent’s brother to pay his proportionate share of estate taxes. The brother opposed the application arguing that the tax apportionment clause in the Will exonerated him from liability.

The decedent’s brother was the beneficiary of two life insurance policies on the decedent’s life, but also was one of the two attesting witnesses to the instrument. Under the circumstances, the court found that his testimony was necessary to the probate of the Will, and pursuant to the provisions of EPTL 3-3.2, declared the tax exoneration clause of the Will ineffective as to him. Specifically, the court reasoned that the provision, to the extent that it discharged an obligation of the decedent’s brother, was tantamount to a beneficial disposition to him, within the scope of the statutory dictates pertaining to witness/beneficiaries.

The court opined that while the result of its opinion was ostensibly harsh, it was not so harsh as to deprive the decedent’s brother of his inheritance, i.e. the insurance proceeds, albeit net of estate taxes. Indeed, the court noted that in most instances in which the statute is applied, the witness/beneficiary under the propounded Will is denied his entire bequest. Nevertheless, the court cautioned attorney-draftspersons utilizing a tax exoneration clause to be fully informed of the recipients of the testator’s non-probate assets in order to avoid unintended consequences.