## Facts

- Elizabeth Bethel Maset died on June 19, 2009, survived by two adult daughters, Alicia Maset and Renée Maset.
- A March 6, 2007 instrument was offered for probate in an uncontested proceeding; the distributees executed waivers of process and consents to probate.
- The will provided: (1) all jewelry to Alicia; (2) $1,500 each to Matthew Riddick, Frank Gibbs, and Renée; and (3) the entire residuary estate to Alicia.
- The will nominated Patricia Polhemus as executrix and did not name an alternate fiduciary.
- The will was subscribed by three attesting witnesses: Matthew Riddick, Alicia Maset, and Patricia Polhemus.
- Each witness submitted a self-proving affidavit under SCPA § 1406, executed after death before notaries (on different dates).
- Two of the three attesting witnesses (Riddick and Alicia) were beneficiaries under the will; Polhemus received no testamentary gift.

## Issues

1. Whether the will’s dispositions to Matthew Riddick and Alicia Maset were void (or reduced) under EPTL § 3-3.2 because they were attesting witnesses who also received beneficial dispositions under the will.
2. Whether Patricia Polhemus was disqualified from serving as executrix solely because she was a subscribing witness.

## Decision

- The court admitted the March 6, 2007 will to probate in the uncontested proceeding.
- The court applied EPTL § 3-3.2 to the beneficiary-witness dispositions: the non-distributee witness’s legacy was void, and the distributee-witness’s benefits were limited to what she would take in intestacy.
- The court held Patricia Polhemus was not disqualified from serving as executrix merely because she witnessed the will.

## Legal Principles

- A will must be executed with at least two attesting witnesses who, at the testator’s request, sign their names and residence addresses at the end of the will. (EPTL § 3-2.1[a][4])
- An attesting witness who receives a beneficial disposition is still competent and may be compelled to testify about execution. (EPTL § 3-3.2[a])
- Unless there are at least two other attesting witnesses who receive no beneficial disposition, a disposition to an attesting witness is void (subject to statutory exceptions). (EPTL § 3-3.2[a][1])
- When the attesting witness is also a distributee, the statute limits the witness’s recovery to the intestate share rather than eliminating the witness’s interest entirely. (EPTL § 3-3.2[b])
- A fiduciary nomination, without a testamentary gift of property, is not treated as a beneficial disposition that disqualifies a subscribing witness from serving as executor/executrix.

## Conclusion

The Surrogate’s Court admitted Maset’s will to probate but enforced New York’s interested-witness statute by voiding the legacy to the non-distributee beneficiary-witness and limiting the distributee beneficiary-witness to her intestate share, while allowing the subscribing witness named as executrix to qualify because witness status alone does not bar fiduciary service.


In re Will of Elizabeth Bethel Maset, Deceased, 25 Misc. 3d 1229 (2009)