GLORIA WINSLOW v. << (2026)

In this probate proceeding, the petitioners, Lorenzo Ricardo Winslow (Lorenzo) and Gloria M. Winslow (Gloria), have offered for probate an instrument dated February 24, 2017, purporting to be the will of Gloria Roxanne Winslow (the Will) and ask that letters testamentary issue to them.

The decedent, Gloria M. Winslow, died on December 21, 2023. She was survived by her four children, Lorenzo, Gloria, Charles Willie Winslow II and Charles Linwood Winslow II.

The Will was witnessed by the decedent's neighbor, Sarita Trotman, and her granddaughter, Azia Rogers (Azia). Azia has submitted an affidavit wherein she states that at the time she witnessed the Will, she was only 16 years old. She is currently 24 years of age. According to Azia, she was at her grandmother's house after school, and her grandmother asked her to act as a witness to the Will. Azia is also a beneficiary under Article Seventh of the Will which bequeaths 5 sets of salt and pepper shakers to each of the decedent's grandchildren who survive her.

The petitioners ask that the court dispense with the testimony of Azia given that she was a minor at the time she acted as a subscribing witness to the Will.

EPTL 3-1.1 provides that "[e]very person eighteen years of age or over, of sound mind and memory, may by will dispose of real and personal property and exercise a power to appoint such property." EPTL 3-2.1(a)(2) provides that the "signature of the testator shall be affixed to the will in the presence of each of the attesting witnesses . . . ." EPTL 3-2.1(a)(4) provides that there shall be at least two attesting witnesses. While there is a requirement that the testator be at least eighteen years of age, surprisingly EPTL 3-2.1 does not require an attesting witness to be at least eighteen years of age. In fact, although the court considers a minor as a person under a disability (SCPA 103[40]), for whom a guardian ad litem would be appointed, it has been held that the infancy of a subscribing witness, by itself, is not sufficient to invalidate a will (Matter of Tannenbaum, 154 Misc 828 [Sur Ct, New York County 1935]). In Matter of Tannenbaum, the sole ground of the objections to the will was that one of the attesting witnesses was a minor. The court held that "[t]here is no statutory requirement in this state that a subscribing witness shall have attained his or her majority. One who is under the age of majority may act and minority is not a disqualification" (Id.).

Here, Azia was sixteen years of age at the time she acted as a witness. Based upon the affidavit she has submitted, it appears that Azia had an understanding of the obligations to act as a witness.

Azia, however, is also a beneficiary of five sets of the decedent's salt and pepper shakers under the Will. Pursuant to EPTL 3-3.2, any attesting witness to a will to whom a beneficial disposition is made forfeits his or her bequest, unless there are at least two other attesting witnesses to the will who have no beneficial disposition.

In Matter of Mengoni, 2025 NY Slip Op 33834[U] [Sur Ct, New York County 2025], the court noted that "[c]ase law, including appellate authority has long recognized that the application and effect of EPTL 3-3.2 is a matter to be decided only after the will has been admitted to probate and that the determination often should await the executor's accounting" (see also Matter of Fracht, 94 Misc 2d 664, 665 [Sur Ct, Bronx County, 1978] ["in the majority of cases, the question of whether a disposition to an attesting witness is void is left for determination in an accounting proceeding"]). While there are some cases that have determined that the question of forfeiture should be decided at the probate stage in an uncontested probate proceeding (Matter of Bloise, NYLJ, Apr. 5, 1995, at 1, col 3 [Sur Ct, Bronx County], the issue of forfeiture in the instant case will not be decided in the context of this proceeding.

The petition is hereby GRANTED. The decedent's Will dated February 24, 2017 is admitted to probate. Letters testamentary shall issue to the petitioners.

Submit decree within sixty (60) days of the date of this decision.

This constitutes the decision and order of the court.

Dated: July 7, 2026

Mineola, New York

E N T E R:

HON. DAVID P. SULLIVAN

Judge of the Surrogate's Court

David P. Sullivan, J.