In re the Estate of Bernatowicz

Order reversed on the law without costs, petition reinstated and matter remitted to Orleans County Surrogate’s Court for further proceedings on petition. Memorandum: We conclude that Surrogate’s Court erred in refusing to admit the will of decedent on the ground that proponent failed to demonstrate due execution of the will. The record shows that decedent, who was very ill, attempted to sign his name to his will, but had difficulty doing so. When, after several attempts, decedent continued to experience difficulty, decedent’s counsel advised proponent that she could aid decedent by steadying his hand. Counsel further advised proponent that she could not sign the document for decedent or move his hand. The Surrogate concluded that proponent controlled rather than assisted decedent in signing the document and that its execution was therefore invalid. We disagree. The question whether a signature is assisted or controlled does not turn on the extent of the aid, but rather whether the act of "signing was in any degree an act of the testator, acquiesced in and adopted by him” (Matter of Kearney, 69 App Div 481, 483). Here, the record establishes that the act of signing was the act of decedent, acquiesced in and adopted by him and, therefore, the signature was assisted rather than controlled. We conclude that the fact that decedent did not request assistance but, rather, that his counsel suggested that he be assisted does not render the signature invalid. We further conclude that the testimony of the witnesses regarding the circumstances surrounding the witnessing of the will demonstrates compliance with the other requirements of EPTL 3-2.1. That testimony sufficiently establishes that decedent signed the document purported to be his will and requested the witnesses to sign the document (see generally, Matter of Dujenski, 147 AD2d 958). We reject the contention of respondents that the execution of the will was invalid because decedent declared the document to be his will before, rather than after, he signed it (see, Matter of Haber, 118 Misc 179, 182; EPTL 3-2.1 [a] [1] [B]). Consequently, we reverse the order, reinstate the petition and remit the matter to Orleans County Surrogate’s Court for further proceedings on the petition. All concur except Balio, J., who dissents and votes to affirm in the following Memorandum.