Probate is the process by which a will is validated by the surrogate’s court. Unfortunately, problems can arise when a will offered for probate many years after it was made. Witnesses can be very difficult to find so many years after a will is signed, and in many cases, they have predeceased the testator. Since a witness’s testimony, or signed affidavit is generally necessary to probate a will, the inability to locate the witnesses can pose a problem. While many wills have the witnesses sign a self-attesting affidavit at the time the will is signed to avoid this problem, not all wills have these self attesting affidavit. So what is one to do if they have to probate a will which isn’t self attested and all the witnesses are either missing or deceased? Fortunately, New York estate planning law recognizes something called the Ancient Document Rule for Wills, which states that:
“when a writing is old, is shown to be in the possession of the natural custodian, and is unsuspicious in appearance in that it appears itself to be free from indications of fraud or invalidity, it may be introduced into evidence or admitted to probate without the necessity of a hearing.”
Further, the courts have stated that in order to have a Will admitted to probate as an ancient document, the Will must be (1) more than 20 years old (although some courts prefer 30 years) (2) found in a natural place of custody (3) and of an unsuspicious nature. This means that wills found in places such as the testator’s safe deposit box or filing cabinet and with no suspicious markings or changes to the document and dated more than twenty years prior to the decedent’s death may be admitted to probate without the testimony of the witnesses. If, however, the will was found in a highly unusual place, such as someone else’s home, or there are alterations to the text of the document, the court may find that the ancient document rule does not apply and reject the will. Further, even if a court found all the conditions of the ancient document rule were met, the court must still be satisfied with “the genuineness of the will and the validity of its execution,” the competence of the testator as well as a lack of fraud or undue influence.
Thankfully the internet has made the job of locating witnesses much faster and easier. Further, by having the witnesses execute a self-proving affidavit pursuant to NY SCPA §1406 at the time of the will execution, this problem can be avoided as the affidavit may be submitted with the will in lieu of live testimony from the witnesses.
If you find yourself in a situation where you need to submit a will for probate that has no self-proving affidavit signed by the attesting witnesses and the witnesses are either deceased or cannot be located, you may be able to submit under the ancient document rule.
Call the attorneys at the Law Offices of Roman Aminov, P.C. at 347-766-2685 to discuss your probate matter today.
This article is for educational purposes only - to provide you general information, not to provide specific legal advice. Use of this post does not create an attorney-client relationship and information contained herein should not be used as a substitute for competent legal advice from a licensed attorney in your state.
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