handwriting-last-will-testamentWhat happens when a seemingly valid Will is so old that none of the witnesses or attorneys are still alive? Assuming there’s no statute that answers this question directly, your best bet is to turn your attention to Common Law. You figure that over the many centuries of judge made law, there must be at least one applicable precedent. As you look back through time, you come across the Ancient Document Rule. It dates back at least as far as the early nineteenth century.


Pursuant to the Ancient Document Rule, a document can be admitted as evidence so long as the document is at least thirty years old, appears to be genuine and is free from suspicion. In New York, where this story takes place, the Ancient Document Rule has been applied to documents as “young” as twenty years old.

Unfortunately, the document in question is nineteen years old. According to Surrogate McCarty of Nassau County, New York, rules are rules, and nineteen is simply not enough.

But that can’t be the end of the story – and it’s not. Our hero turns out to be an expert witness. A handwriting expert to be exact.

Anyone who has done any probate work knows that most Surrogates don’t want to frustrate a decedent’s intentions with respect to his estate. With a perfectly good Will in hand and no-one attacking its authenticity, Surrogate McCarty focused his attention on SCPA §1405[4], which provides that the Will may be admitted to probate based solely upon “the handwriting of the testator and of at least one of the attesting witnesses and such other facts as would be sufficient to prove the Will.” Applying this language, McCarty held that “the handwriting of the predeceased attorney draftsman could be obtained from his original Will that was on file with the Court, and proved based upon an affidavit from a handwriting expert that the signature on the propounded instrument was written by the same person who executed his Will.”

Thus, the desire of the decedent isn’t frustrated, the court is reassured that the document is authentic based upon a handwriting expert’s professional opinion, and the beneficiaries receive their rightful share of the estate. Everyone is happy.

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

By: Ian Heller, J.D.