Testators Have to say it
Well, pretty much. When executing a will, you have to say it—that it’s your will and that you want the witnesses to acknowledge your signature. It’s critical that the testator (the person making the will) communicate this to the witnesses. This is the publication requirement under New York law.1 Technically speaking, the testator doesn’t actually have to mouth the words, but the message must be sent. Telepathy? Text message? Animated GIF?
Often, it’s the attorney drafter who supervises the execution of a will and ensures that the publication requirement is met. A testator must ‘say it’ or send the message another way. I instruct my clients to read the first paragraph of their will, which includes the phrase: “I make, publish and declare this to be my last Will and Testament.” Clients read this out loud in front of the witnesses. That clearly gets the job done. But self-made and LegalZoom-type wills present an interesting issue. When an expert is not supervising the will execution, what ensures that the will is properly executed?
Case in point: Estate of Ender
We see this happening more and more in the litigation context as home-made wills become more prevalent through legal support websites. Colleague, and friend of Antonelli & Antonelli, James Cahill, Jr., litigated the publication issue recently and knocked out the purported will on the basis that the testator just Had to say it—but didn’t. One of the witnesses to the will testified in her deposition that the testator never communicated to her, “through words or otherwise,” that the document she was signing was the testator’s will. In fact, the witness didn’t even know the document was a will until she was alerted to that fact in her deposition. Jim moved for summary judgment and the court found in his client’s favor, holding that the testator must communicate to the witnesses that the document being witnessed is a will in order “to satisfy the statutory requirement of publication . . . .”2 The proponent of the will argued that the testator’s statement to the witness, “I like [sic] you to be – to serve as a witness because this document I’m signing here is for my wife,” sent the message that the document to be witnessed was a will and therefore satisfied the publication requirement. But New York County Surrogate Rita Mella found the argument unpersuasive and granted Jim’s motion for summary judgment denying probate.3 Jim successfully prevented the will from being validated on the basis that the testator indeed Had to say it—but didn’t.
1 EPTL § 3-2.1 (a) (3); Matter of Fiske, 69 NYS2d 655 [Sur Ct, Westchester County 1947]; Matter of Falk, 47 AD3d 21, 26-27 [1st Dept 2007]
2 Matter of Ender, Sur Ct, NY County, July 3, 2019, Mella, J, file No. 2017-434/A