The Journey of the Last Will, from Italian to English
Certified translation services play an important role in probate cases involving foreign wills. Today’s case In the Matter of Fondacaro, Surrogate’s Court, NY 2019, brings us to the last will executed in Italy and written in Italian. The will belongs to the, now deceased, Carmela Fondacaro. The will was handwritten by a notary at the behest of the deceased, and two witnesses were present at its execution. The preamble to the will noted that this was her last will. The will was signed by the decedent, the two witnesses, as well as the notary.
Generally, in New York, for a will to be valid it must be signed by the testator in front of two witnesses, the testator must declare to the two witnesses that the document he or she is signing is a will. Furthermore, the two witnesses must sign it front of the testator. As per the will, Ms. Fondacaro bequeathed her assets to her brother Antonio Fondacaro, as well as her nephews Aldo Fondacaro and Russel Ruggiero. The petitioner, in this case, Aldo Fondacaro, submitted the will to be probated in the Surrogate’s Court. The Court found that the will met the requirements set out above, and, therefore, the will was deemed to be valid.
As a matter of fact, there is no requirement in New York for a will to be written in English to be valid. However, it is highly doubtful that a court would be able to deem a will to be valid, if the court did not, in fact, understand the content of the will. Of course, had the will not been translated from Italian to English, then the court would not have been able to determine that it was intended to be the last will and testament of the deceased. It must also be clear for the court that the will is indeed intended to be the last will and testament of the deceased. And without such a clarification the document in question would not be considered a will.
In this particular case the will was submitted with an Italian to English translation. Because of the English translation of the will the court was able to determine that this document was intended to be the last will and testament of the deceased. Therefore, non-English-speaking parties would be better off seeking certified legal translation of their wills from a foreign language to English, lest they want the beneficiaries to battle it out in court, after their death. Luckily in this case the will was written in the Decedent’s preferred language, Italian.
But what if the will is written in a language not spoken by the testator? This is the question answered in the Matter of Esamilian, in 2014, by the Surrogate’s Court, Nassau County.
When a Non-English-Speaking Testator’s Will is Written in English
In the Matter of Esmailian the Court noted that the testator, now deceased, had a very rudimentary knowledge of English, but was fluent in Farsi, also known as Persian, her native language. However, her will was written in English by her attorney who was fluent in both Farsi and English. An objecting party challenged the validity of the will arguing that since the decedent was not well versed in the English language, the will could not be valid.
However, the deposition testimony of the decedent’s attorney revealed that when the decedent signed the will, which he had translated from Farsi to English. This was also confirmed by the two witnesses who had signed the will. Accordingly, the Court found this to be satisfactory and rejected the objectant’s argument.
So which standard do the courts, at least in New York, apply when dealing with the circumstances where the last will is written in English by a testator who is neither fluent nor literate in English?
When Testator in Neither Literate Nor Fluent in English
This question was given a clear answer in 2021, by the Queens County Surrogate’s Court in the Matter of Sook Li. When a will is prepared by an attorney for a client who does not speak, read, or understand English, the contents of the will should be translated to the testator, so that the will complies with the wishes of the testator. Therefore, attorneys would be well advised to use a competent legal translator/ interpreter in such cases.
In the Matter of Sook Li an objecting party challenged the will, on the grounds, among other things, that the decedent did not speak English adequately to understand her own will. The testator, under consideration, was a Cantonese speaker. The objecting party accordingly moved for summary judgment based on the aforesaid argument. The Court noted that there was conflicting testimony regarding the decedent’s ability in English. Therefore, the Summary Judgment Motion was denied. However, the Court did point out that where a testator does not speak English there will be a greater burden in showing that the will reflects the testator’s wishes, and is, hence, valid. Matter of Sook Li 2021 NY Slip Op 21193 Decided on July 20, 2021Surrogate’s Court, Queens County.
In other words, if you, as an attorney, are preparing a will for a client who does not understand English, you need to obtain its certified translation. This would ensure that the will written as per the wishes of the testator. Get in touch with certified document translation service All Language Alliance, Inc. to obtain certified translation of last wills and testaments written in Italian, French, German, Russian, Romanian, Croatian, Korean, Hebrew, Czech, Hungarian, Romanian, and other foreign languages, and to retain a competent legal interpreter for attorney-client meetings with non-English-speaking clients.
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