In re the Estate of Tier

3 Misc. 3d 587, 772 N.Y.S.2d 500, 2004 N.Y. Misc. LEXIS 48
CourtNew York Surrogate's Court
DecidedFebruary 2, 2004
StatusPublished

This text of 3 Misc. 3d 587 (In re the Estate of Tier) is published on Counsel Stack Legal Research, covering New York Surrogate's Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Estate of Tier, 3 Misc. 3d 587, 772 N.Y.S.2d 500, 2004 N.Y. Misc. LEXIS 48 (N.Y. Super. Ct. 2004).

Opinion

OPINION OF THE COURT

Eve Preminger, S.

In this uncontested probate proceeding, the Public Adminis[588]*588trator has petitioned for letters of administration c.t.a. in the estate of Ethel Tier who died November; 24, 2000 at age 91. The typed will contains a number of handwritten changes, which petitioner asks be given no effect. In addition, petitioner asks that the will be admitted as an ancient document.

The handwritten changes to the will include the deletion of certain preresiduary bequests as well as the deletion of the nomination of a successor executor, an individual whose whereabouts are unknown. Each deleted section is accompanied by the signature “E Tier.” The testator signed the will as “Ethel Tier.”

The law is clear that while an alteration made to a will before execution is part of the will and accordingly will be given effect, an alteration made after execution of the will, but which does not revoke the will (see EPTL 3-4.1 [a] [2] [A]), will be ignored (see EPTL 3-2.1 [a] [1] [B]). Less clear, however, is the procedure for determining when an alteration, was made.

The timing of an alteration may be ¿stablished by evidence intrinsic or extrinsic to a will. An example of intrinsic evidence that alterations preceded execution of the will are signatures of the testator and attesting witnesses beside each alteration and a reference to each alteration in the attestation clause. Conversely, an alteration bearing a date subsequent to the date of execution is intrinsic evidence of its invalidity (e.g. Matter of Steffenhagen, 77 Misc 2d 624, 631 [1974]; Matter of Clarke, NYLJ, Mar. 21, 2002, at 24, col 5). Extrinsic evidence of the timing of an alteration may be in the form of an affidavit of the attorney who supervised execution of the will, to which is appended a photocopy or conformed copy of the will made immediately after execution. Extrinsic evidence may also be derived from the circumstances. For example, an interlineation containing a bequest to a child born after execution of the ¡will is ineffective (e.g. Estate of Danahy, NYLJ, Dec. 12, 2001, at 23, col 1).

If proponent offers no proof or insufficient proof as to the timing of an alteration, all persons whose interests are affected by the alteration must be cited (see SCPA 1420 [3]). A hearing may be held (see e.g. Matter of Dawson, NYLJ, Feb. 23, 1982, at 14, col 2).

If no evidence is adduced, as in the ihstant case, the law is somewhat murky as to the standard for ¡determining when the alteration was made.

As noted 30 years ago: “There exists a veritable host of inconsistent, contradictory and incomplete judicial determinations [589]*589throughout the United States and England. (See extensive annotation, 34 ALR2d 619-676.) In this State alone, decisional support can be found for practically every conceivable approach to the problem.”1 (Matter of Steffenhagen, 77 Misc 2d 624, 625 [1974], supra.)

The leading New York case regarding the timing of an alteration to a will is Crossman v Crossman (95 NY 145 [1884]). In Crossman, the Court of Appeals found the interlineation— the insertion of the name of an executor omitted from one of two duplicate original wills — which was duly noted above the attestation clause of the will, preceded execution. Crossman was an unusual case in that the validity of the interlineation was not questioned in the original probate proceeding; indeed, the altered duplicate was not even proffered. Contestants in Cross-man commenced their proceeding to invalidate the will after the unaltered duplicate had been admitted to probate. Despite the peculiar posture and narrow holding of Crossman, its impact is broad: it dispels the notion that an alteration to a will is presumed invalid.2

The Court of Appeals enunciated factors a surrogate is bound to consider:

“Here, from all the circumstances it was, at least for the surrogate, to determine whether this interlineation was made before or after execution; and in making that determination he was bound to consider the handwriting, the color of the ink, the manner of the interlineation, the fact that it was noted at the bottom of the instrument, and that it was made to correspond with the other duplicate. Where an interlineation or erasure in a will is fair upon its face, and it is entirely unexplained, there being no circumstance whatever to cast suspicion upon it, it would not be proper for any court to hold that the [590]*590alteration was made after execution; but if there are any suspicious or doubtful circumstances growing out of the mode of the alteration, the ink in which it was made, the fact that it was in favor of the party holding the instrument, and that it is not noted at the bottom, then these and all t,he other circumstances must be submitted as questions of fact to be determined by the court, in deciding whether the alterations were made before execution or not.” (Crossman v Crossman, 95 NY 145, 153-154 [1884], supra.)

The Court’s opinion has been interpreted variously.

Some courts, ignoring a critical aspect of the Crossman analysis, disregard a lack of reference to an alteration at the bottom of a will as a “suspicious or doubtful” circumstance, to validate an otherwise “fair upon its face” alteration (Matter of Kelly, NYLJ, July 31, 2002, at 21, col 4; Matter of Quinn, NYLJ, Jan. 4, 1999, at 28, col 5; Matter of Hurwitz, NYLJ, Apr. 25, 1991, at 29, col 2; Matter of Aronson, NYLJ, Sept. 25, 1989, at 28, col 3; Matter of Rosenfield, NYLJ, May 11, 1987, at 15, col 6; Matter of Gallant, NYLJ, Feb. 10, 1987, at 7, col 3; Matter of Hecht, NYLJ, Nov. 24, 1980, at 15, col 2; Matter of Crozier, NYLJ, Jan. 11, 1980, at 12, col 1). These cases, in effect, hold that an alteration is valid in the absence of evidence to the contrary. This court declines to adopt such an approach. An alteration made prior to execution may be indistinguishable, on its face, from one made subsequent to execution. Therefore, to presume an alteration preceded execution makes no more sense than to presume it postdated execution.

Other courts have recognized the factors articulated by the Court of Appeals as the basis for a sufficiency of evidence standard. See e.g. Matter of Steffenhagen (77 Misc 2d 624, 630 [1974], supra), in which the court stated:

“It [a sufficiency of evidence concfept] is consistent with what has been stated to be the ‘doctrine of the better considered American cases, and also, it seems, the correctly stated English doctrine’ that there is no presumption of law that alterations to a will were made after execution, rather that the question is one of fact” (citation omitted).

A sufficiency of evidence approach, however, is of no avail in the instant proceeding, in which no evidence exists — save, perhaps, [591]*591the absence of a reference to the alterations in the attestation clause.3

The sound approach, once proponent fails to adduce evidence as to the timing of the alteration, is to cast the burden of establishing the effectiveness of an alteration upon the person whom the alteration would benefit, the person with the greatest incentive to prevail

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Related

Crossman v. . Crossman
95 N.Y. 145 (New York Court of Appeals, 1884)
In re Proving the Last Will & Testament of Ross
177 A.D. 719 (Appellate Division of the Supreme Court of New York, 1917)
In re the Estate of Fodera
96 A.D.2d 559 (Appellate Division of the Supreme Court of New York, 1983)
In re Hamlin to Prove the Last Wil & Testament of Hamlin
124 Misc. 847 (New York Surrogate's Court, 1925)
In re Potter's Will
12 N.Y.S. 105 (New York Surrogate's Court, 1890)
In re the Probate of the Will of Willenborg
16 Misc. 2d 419 (New York Surrogate's Court, 1958)
In re the Accounting of Bridgman
22 Misc. 2d 993 (New York Surrogate's Court, 1960)
In re the Estate of Brittain
54 Misc. 2d 965 (New York Surrogate's Court, 1967)
In re the Estate of Steffenhagen
77 Misc. 2d 624 (New York Surrogate's Court, 1974)

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Bluebook (online)
3 Misc. 3d 587, 772 N.Y.S.2d 500, 2004 N.Y. Misc. LEXIS 48, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-tier-nysurct-2004.