In this probate proceeding, respondent moves for an order determining that the document offered for probate is not a testamentary instrument.

Before the court is a petition for the probate of an instrument dated June 7, 2004. It is alleged by respondent that the instrument does not direct the disposition of the testator's property and it is therefore not a testamentary instrument. It is further alleged that the failure to provide for the appointment of an executor should result in a denial of probate. Respondent now moves for an order "rejecting probate" on these additional grounds. The motion will be treated as a motion to dismiss.

The instrument provides in part:

"To Whom it May Concern:

On this day the 7th of June, 2, 2004 being of sound mind it is my wish that when I die my son Phillip Alan Langdon become the sole owner of my house and anything in it that he chooses to have. At this point in time he lives in this location with me and has been my caregiver and I needed [undecipherable] a lot.He has taken on many difficult and time consuming chores to enrich my life."The instrument contains the purported signatures of the decedent, Phillip Langdon

and two other persons.

Respondent alleges that the language pertaining to the house is precatory and the instrument therefore makes no direction as to the disposition of property. Petitioner argues that a determination as to meaning of the word "wish" should be determined in a construction proceeding, not a proceeding to determine the validity of a will.

Only an instrument which is testamentary in nature can be admitted to probate (Matter of Rundberg,177 Misc 43 [Sur Ct, Richmond County [1941]). The question as to whether a [*2]document is testamentary may be addressed on a motion to dismiss a petition for probate (see e.g. Matter of Wolf, 38 Misc 3d 564 [Sur Ct, Kings County 2012]).

Generally, the two indicia of a testamentary instrument are that it expresses an intention to dispose of the testator's property and that it takes effect at death (1 Jarman on Wills ch II, p. 26 [1880] ). Where a document satisfies these requirements, it meets the threshold requirement of a testamentary instrument. These requirements are separate and apart from issues raised as to capacity, due execution and fraud or undue influence (Matter of Davis, 183 NY 468 [1906]).

A last will and testament may contain a request rather than a direction by the testator as to the disposition of property. It is not necessary that a disposition take the form of a mandatory direction (l Williams on Executors, sec IV, p. 60 [1841]). Specifically, the probate of an instrument is not affected by the fact that a question has been raised as to whether language in a sole dispositive provision is precatory (see Matter of Bosworth,269 App Div 252 [3d Dept 1945]). Indeed, where the provisions in an instrument are wholly inoperative, probate cannot be denied if the instrument is otherwise valid (Matter of Webb, 122 Misc 129 [Sur Ct, New York County [1923] aff'd 208 App Div 793 [lst Dept 1924]).

A determination as to whether language in a will is precatory or mandatory requires a construction of the instrument. Questions relating to the validity, effect and/or disposition of

property are reserved for consideration after the instrument is admitted to probate (SCPA 1420 [3] (Matter of May, 241 NY 1 [1925] Matter of Martin, 17 AD3d 598 [2d Dept 2005]).

Respondent seeks to dismiss the petition on the grounds that the instrument does not nominate an executor. Although the sole provision in a will may be the selection of an executor (Matter of Emmons, 110 App Div 701 [lst Dept 1906]), there is no requirement that a last will and testament provide for the appointment of an executor.

Objections to probate must be verified by the parties to this proceeding. The time to file properly verified objections is extended to May 7, 2014. Issues related to due execution are not the proper subject of this motion.

As to the alleged failure of petitioner to pay real estate taxes, respondent can petition for temporary letters of administration.

The motion to dismiss the probate petition is denied.

This is the decision and order of the court.

Dated: March 13, 2014

EDWARD W. McCARTY III

Judge of the

Surrogate's Court