Matter of Santoro (2011 NY Slip Op 50920(U))

Matter of Santoro

2011 NY Slip Op 50920(U) [31 Misc 3d 1231(A)]

Decided on May 3, 2011

Sur Ct, Nassau County

McCarty, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

In this uncontested probate proceeding, the court is asked to admit the will to probate as an ancient document as the petitioner is unable to provide the court with either affidavits or testimony of the attesting witnesses; it is alleged that one of them is deceased and the other's whereabouts are unknown. In such circumstances, the court may admit a will to probate under the so-called Ancient Document Rule, some courts applying the common law 30-year rule, while others have adopted the more liberal 20-year federal rule (Warren's Heaton on Surrogate's Court Practice, § 41.10[2][j]). Here, however, the instrument is 19 years old. The petitioner does not offer any precedent for admitting a will to probate as an ancient document that is less than 20 years old and the court's own research does not reveal any.

However, the fact that the will may not be admitted to probate as an ancient document does not require dismissal of the probate proceeding. Counsel's affirmation in support of his application indicates that he first attempted to have the will admitted to probate pursuant to SCPA 1405(4), which permits the court to admit a will to probate even though all of the attesting witnesses are deceased or unavailable upon proof of the handwriting of the testator and at least one of the attesting witnesses. Although counsel's affirmation indicates he was unable to secure such an affidavit with regard to either of the attesting witnesses, it appears that Robert E. Welch, Esq., the attorney draftsman, who was one of the witnesses, died a resident of this county and his will was admitted to probate by this court. There is, therefore, an original exemplar of

Mr. Welch's signature on file with the court. An affidavit from a handwriting expert that

Mr. Welch's signature on the propounded instrument was written by the same person who executed his will, along with an affidavit from one of the decedent's children or more remote relatives as to her signature, will satisfy the court of the genuineness of the will and permit its admission to probate. [*2]

This decision constitutes the order of the court and no additional order need be submitted.

Dated: May 3, 2011