The Suffolk County Surrogate’s Court has found that a witness to an SCPA 2307-a disclosure form may be affiliated with the nominated attorney/fiduciary.
By way of background, under SCPA 2307-a, when an attorney prepares a Will and the attorney is nominated in the Will as an Executor, the attorney will receive only one-half of an Executor statutory commission unless the testator signs a form acknowledging the disclosures required by the statute.
In this case, the attorney who was nominated as an Executor under the Will had the disclosure form witnessed by an attorney who was affiliated with him. The question was raised as to whether that document was tainted by that affiliation.
The Surrogate’s Court reviewed the statute, which merely requires for the witness to be someone “other than the executor-designee.” According to the Surrogate’s Court, the statute sets forth no standard of relationship or affiliation that would define at what point a witness is no longer disinterested and therefore precluded from serving as a witness. Accordingly, the Surrogate’s Court concluded that nothing in the statute would disqualify an affiliated attorney from acting as a witness.
Besides looking at the face of the statute, the court also took a practical approach in reaching its conclusion and found that to hold otherwise would force a law firm to seek a stranger to the firm for purposes of witnessing the form.
The Surrogate’s Court did note that a better course of action may be to use someone other than a person affiliated with the nominated attorney/fiduciary.
