## Facts

- Helen Morea executed a will dated December 2, 1991.
- The will had three attesting witnesses: George Buonaroba (the decedent’s friend), Kevin Morea (the decedent’s son), and a third witness.
- Buonaroba was named as a beneficiary under the will and also served as an attesting witness.
- Kevin was also a beneficiary under the will and an attesting witness; he was one of the decedent’s six surviving children and therefore a distributee.
- The third attesting witness received no disposition or appointment under the will.
- Kevin’s legacy under the will was less than what he would have received had the decedent died intestate.
- In an uncontested probate proceeding in Surrogate’s Court, Bronx County, the court considered whether EPTL § 3-3.2 voided Buonaroba’s bequest because he was an attesting witness who received a testamentary gift.

## Issues

1. Under EPTL § 3-3.2(a)(1), is a testamentary disposition to an attesting witness void when only one other witness is wholly disinterested, and the second co-witness is a distributee whose legacy is less than his intestate share?
2. For purposes of EPTL § 3-3.2(a)(1)’s requirement of “two other attesting witnesses … who receive no beneficial disposition or appointment,” does a distributee-witness protected by EPTL § 3-3.2(a)(3) count as receiving no “beneficial disposition” where the will leaves him less than intestacy?

## Decision

- The court admitted the will to probate in the uncontested proceeding.
- The court held that Buonaroba’s bequest was not void under EPTL § 3-3.2.
- The court reasoned that Kevin, as a distributee, did not forfeit his legacy because EPTL § 3-3.2(a)(3) allows a distributee-witness to take the lesser of the intestate share or the testamentary gift.
- Because Kevin’s legacy was less than his intestate share, the court treated Kevin as not receiving a “beneficial disposition” for purposes of determining whether there were “two other” witnesses who received no beneficial disposition under EPTL § 3-3.2(a)(1).
- With the third witness wholly disinterested and Kevin treated as not receiving a beneficial disposition, the condition for saving Buonaroba’s bequest was satisfied.

## Legal Principles

- EPTL § 3-3.2(a)(1) makes an attesting witness competent to testify but generally voids (“purges”) a beneficial disposition to that witness unless, at execution, there are at least two other attesting witnesses who receive no beneficial disposition or appointment under the will.
- EPTL § 3-3.2(a)(3) protects a distributee who is also an attesting witness, allowing that witness to receive the lesser of (i) the intestate share and (ii) the testamentary disposition.
- The statute serves two aims: (1) preserve the testator’s plan to the extent possible by keeping witnesses competent, and (2) reduce the risk that a witness with something to gain will give false testimony to support probate.
- Where a distributee-witness’s position under the will is no better than (and here is worse than) intestacy, the distributee-witness does not have the type of gain-based incentive that the purging rule targets.
- Courts need not extend New York’s purging rule beyond the problem it addresses; when the statutory scheme already removes the incentive to testify falsely, invalidating another witness’s bequest is unnecessary.

## Conclusion

Estate of Morea held that a friend’s bequest was not void under EPTL § 3-3.2 even though the friend was an attesting witness, because the will had a third disinterested witness and the decedent’s son—also an attesting witness—was a distributee whose legacy was less than his intestate share and, under EPTL § 3-3.2(a)(3), was treated as not receiving a beneficial disposition for purposes of the “two other witnesses” requirement.


Estate of Morea, 645 N.Y.S.2d 1022 (1996)