As a recent first time homeowner, the phrase “Do It Yourself” or “DIY” takes me back to the late nights this past February of spackling, sanding and painting all of the walls in my house with my husband. We were fortunate that this was the only work that needed to be done. We were also fortunate because there were no structural, electrical or plumbing problems. I say fortunate because we know our limits; we know that we are not equipped or skilled enough to take on major plumbing or electrical projects. I know that it is hard to resist the temptation of trying to save money in the short term by tackling these repairs and projects on your own. However, one has to be realistic about the possibility of a DIY disaster when trying to take on projects that should be left to professionals. This rule applies to home improvement as well as to estate planning.
In my career, I have seen some DIY at home estate planning blunders. One of the most memorable is an estate I handled last year where the testator signed her will at the bottom of every page, but not on the clearly marked signature line on the last page. In this case, my clients were fortunate that the proceeding was uncontested and that the Surrogate’s Court found that the requirements of due execution set forth in EPTL §3-2.1(a)(1) were complied with and the will was admitted to probate.[ 1 ] This case was an exception, and as we all know these DIY situations often do not have a happy ending.
In New York, for a Last Will and Testament to be considered valid to transfer the decedent’s real and personal property, EPTL § 3-2.1 states that the following formalities must be followed:
(1) The instrument must be signed at the end by the testator;
(2) The testator must sign the instrument in the presence of the attesting witnesses;
(3) The testator must declare to the attesting witnesses that the instrument is his or her will; and
(4) There must be at least two attesting witnesses.
The general rule when it comes to publication is that where a testator exhibits a paper drawn and subscribed by him or her, with the subscription in plain sight, and declares to witnesses that it is their last will and testament and asks them to sign as witnesses, he or she has done all that statute requires and there is a sufficient publication of the will and acknowledgment of the testator’s subscription thereto.
When an attorney supervises the execution of a will, a presumption of due execution arises, meaning that there is a presumption that all of the proper statutory formalities were followed when the will was signed by the testator. This is also known as a “presumption of regularity”. If the will execution ceremony is not supervised by an attorney, this presumption does not exist. In order for the Surrogate’s Court to admit an unsupervised will to probate, it must be satisfied from all of the evidence that the will was properly executed. If a lay person executes a will themselves without attorney supervision, the lay person runs the risk of violating the provisions of EPTL § 3-2.1 and having the purported will denied probate.
A recent example where DIY estate planning failed to satisfy the due execution requirements of EPTL § 3-2.1 and was denied probate is in the Matter of Martello. In Martello, the decedent was admitted to Stony Brook University Hospital for scheduled surgery on October 10, 2012. That day he executed a hand-written, one-sided, single page document, with the caption “The Last Will and Testament of Frank Martello 10/10/2012.” The terms of this will give the decedent’s entire estate to his “beloved companion and partner of the past twenty-two years.”
At trial, both witnesses testified that they knew that the document for which they were acting as witnesses was a will, despite the fact that Mr. Martello never stated that the document was his will. However, there was never any testimony presented that Mr. Martello knew that the instrument he was signing was his will. One witness testified only that Mr. Martello had “wishes” that he wanted witnessed. The other witness asked Mr. Martello if the paper “was the paper he wanted to sign.” Both witnesses were clear in their testimony that Mr. Martello never declared the document to be his will, despite the title of the document clearly stating that the document was his will.
After a bench trial on the matter, Surrogate Czygier held that testimony of the witnesses did not support due execution. This was because there was no publication of the instrument offered for probate as Mr. Martello never declared to the witnesses that the instrument was his will.
The Surrogate based his decision on the holding in the matter of Matter of Pirozzi. In Pirozzi, the decedent had two identical wills prepared by her attorney. The second will was executed the day before she died. The attorney only prepared the will and was not present for the execution ceremony of same. This second will gave all of decedent’s real and personal property to the petitioner. The second will was offered for probate. Two of the three attesting witnesses had died between the signing of the will and the petition for probate. At trial, the sole surviving witness testified that only she, decedent and petitioner were present at the signing and that decedent did not state her intention that the document serve as her will. The Court held that without such a declaration, the document should not be admitted to probate.
It its decision, the Court quoting the Appellate Division Second Department case of In re Roberts stated that “Publication can be through words or actions, but something must occur to show that there had been a meeting of the minds between the testator and the attesting witnesses that the instrument they were being asked to sign as witnesses was testamentary in character.”
A similar holding on a self-prepared will was reached in Matter of Griffin. In this case, the decedent prepared a writing that she intended to be her will in her home. She later brought one page of that writing into the town clerk’s office and requested that two women in the office witness her signature on the paper. At trial, it was revealed that the decedent never stated to the witnesses that the writing was her will. The nominated executor of the estate attempted to admit the writing to probate, and the guardian ad litem argued that the will was not valid due to lack of publication. The Surrogate’s Court, Ulster County, denied probate of the writing. On appeal, the Appellate Division, Third Department, affirmed the judgment. The court determined that under EPTL § 3-2.1(a)(3), the decedent had to declare to each of the attesting witnesses that the writing was her will. Because the decedent’s publication was insufficient, the Court agreed that the writing could not be admitted to probate.
As you already know as practitioners, when clients decide to take estate planning matters into their own hands and prepare their own wills either in writing on through a service on the internet, there can be unintended consequences. In many cases the consequences of this DIY estate planning involves litigation that ends up costing far more than if the client would have just seen an attorney in the first place to have their will prepared. If you have clients that balk at your fees and say that they are going to prepare their own wills, the above are some stories you can share to try and prevent them from having their own DIY estate planning disaster.
Kera Reed, Esq. is an associate at Burner Law Group, P.C. Ms. Reed is a member of the Bar Association’s Surrogate’s Court Committee.
 Matter of Miller, Suffolk County Surrogate’s Court File No. 2013-531/A (July 9, 2013).
 Matter of Bassett’s Will, 84 Misc. 656 (Sur. Ct., Lewis County 1914).
 See Matter of Kindberg’s Will, 207 N.Y. 220 (1912).
 Matter of Hedges, 100 AD2d 586 (2d Dep’t 1984).
 Matter of Collins, 60 NY2d 466 (1983).
 Matter of Martello, N.Y.L.J., July 31, 2014, at 27, col.6 (Sur. Ct. Suffolk County).
 Matter of Pirozzi, 238 A.D.2d 833 (3d Dep’t 1997).
 Matter of Roberts, 215 A.D.2d 666 (2d Dep’t 1995).
 Matter of Griffin, 81 A.D.2d 735 (3d Dep’t 1981).