Apostilles or Affirmations: Recent Legislative Changes to CPLR 2106

July 29, 2015

By Christopher C. Haner

A major victory was won for the trusts and estates Bar with the recent legislative amendments to CPLR 2106, but the time for celebration must wait.

Traditionally, CPLR 2106 only allowed certain enumerated professionals, namely attorneys, physicians, osteopaths and dentists authorized and licensed to practice in New York, to submit affirmations to the courts of this state in lieu of submitting sworn, notarized affidavits.    The law was amended, effective January 1, 2015, to add, in a new subsection (b), that “[t]he statement of any person, when that person is physically located outside the geographic boundaries of the United States, Puerto Rico, The United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States, subscribed and affirmed by that person to be true under the penalties of perjury, may be used in an action in lieu of and with the same force and effect as an affidavit . . . .”

Put simply, the recent legislative amendments to CPLR 2106 allow any person, professional or not, who is physically located outside of the United States to submit unsworn affirmations to the courts of this state, which affirmations are to be given the same force and effect of traditional, sworn, notarized affidavits.  As stated by David Paul Horowitz in his article Burden of Proof, “[i]ronically, the only people in the world after [January 1, 2015] who may not affirm pursuant to CPLR 2106 are those located within the United States or its territories who are not New York licensed or authorized attorneys, physicians, osteopaths and dentists.”

Changes to Administering the Estates of Foreign Nationals and Recent Immigrants

While such a sweeping change to CPLR 2106 may not affect the trusts and estates practitioners’ more “run of the mill” cases, where the decedent and his/her family are residents of this state, the effect of this legislative change is apparent in dealing with estates of decedents who were foreign nationals, immigrants, or first-generation Americans, as these decedents may not have any living relatives or close friends in the United States. When such is the case, especially when the petition requires that it be supported by either a family tree diagram and affidavit and/or an affidavit of heirship,  practitioners often find themselves in a jam; the practitioner can either try in vain to locate a close friend or relative of the decedent who lives in the United States and has both the required knowledge of the decedent’s family tree and a willingness to provide an affidavit attesting to such facts; or work with the decedent’s family members and friends living abroad in preparing and having required affidavits properly executed and authenticated, which requires either that the affidavit be executed at the local U.S. Consulate or signed in the presence of a local notary public, or notary equivalent, and properly authenticated through the attachment of an apostille.  Under the Hague Convention of 1961, an apostille became a standard certification for purposes of authenticating documents for use in foreign countries. 

While the second scenario might be easy enough to achieve when the decedent’s friends and family live in a “first-world” country, such is not true elsewhere, where locating, traveling to and paying the fees associated with having an affidavit properly authenticated might be too burdensome for the decedent’s friends and family.   It is this second scenario which is particularly troublesome, as the practitioner’s inability to locate a friend or relative with both the required knowledge to swear to a meaningful affidavit and a willingness to shoulder the burden of having such affidavit properly authenticated leaves many estates, especially those of recent immigrants, in limbo.

The recent changes to CPLR 2106 enable the practitioner to solve this problem, but will the Surrogates’ Courts accept the affirmations of persons physically located outside of the United States (“Foreign Affirmations”) as sufficient proof of the facts recited therein and thereby eliminate the burden and need to have foreign-executed affidavits properly authenticated? 

Evidentiary Value of Foreign Affirmation

It is worth noting, at the outset, that an affidavit/affirmation is nothing more than a proffer of factual evidence and, as with any other proffer of evidence, the courts have the authority to accept, reject or require additional proof of the facts recited therein. So will the proffer of evidence offered in Foreign Affirmations be sufficient to satisfy the Surrogates’ Courts that the facts recited therein are truthful? An informal survey of the law clerks, law departments and Surrogates in the metro New York area and Long Island revealed that the answer to this question is “it depends.”

Affidavits/affirmations tend to play two very important roles in the Surrogates’ Courts: affidavits/affirmations have the ability to confer the court’s jurisdiction over a proceeding and the parties thereto, such as when an affidavit of service is filed, and affidavits/affirmations impact the substantive factual record before the court, potentially effecting estate distributions, after jurisdiction has been obtained.

While the Surrogates may have different thoughts about the appropriate weight to be given to affirmations that affect the substantive factual record before the court (“Substantive Affirmations”), the Surrogates seem to be uniform in their opinion that such affirmations will not be accepted or afforded evidentiary value in establishing the court’s jurisdiction over the proceeding and the parties thereto (“Jurisdictional Affirmations”).  Therefore, the practitioner would be ill advised to submit any verified petition, objection or accounting whose verification is in the form of an affirmation in lieu of an affidavit;  or file an affirmation of service, unless such affirmation is a traditional affirmation made by a licensed attorney, physician, osteopath or dentist (“Traditional Affirmation”); or  file a waiver and consent and/or acceptance of service which is affirmed instead of sworn to and notarized.

Concerning Substantive Affirmations, which include affirmations of family tree/heirship, affirmations concerning living trusts, affirmations to dispense with the filing of a bond and affirmations in support of motions, the opinions of the Surrogates’ Courts as to the acceptability of such affirmations, and as to the evidentiary value to be given to such affirmations, seems to fall into two camps. 

The first camp would reject such affirmations outright, and would give no evidentiary weight to such affirmations. The reasons given for this stance tend to be that the recent legislative changes to CPLR 2106 were not intended to affect the practice of the Surrogates’ Courts.  Instead, the changes were only intended to affect the practice of the Commercial Part of the Supreme Court, as the commercial bar provided the strongest push for the change.  The first camp finds such affirmations lack the indicia of reliability of Traditional Affirmations because, unlike the Traditional Affirmation where the affirmant places his/her license and professional reputation on the line if he/she were to falsely affirm, the foreign affirmant places nothing on the line, as he/she is not subject to the laws of the United States, and, thus, is more likely to create facts favorable to the affirmant or to a friendly third party.

While the second camp agrees that foreign affirmations lack the reliability of Traditional Affirmations, for the same reasons outlined above, and thus may be awarded less evidentiary weight than a Traditional Affirmation or affidavit, the second camp has instructed all clerks to accept such affirmations for filing and consideration. While the Surrogates of the second camp could not provide a clear list of when such foreign affirmations will be afforded the evidentiary value necessary to impact a decedent’s estate, these Surrogates seemed to agree that a “common sense” approach will be used when considering such Foreign Affirmations, which may include the decedent’s immigration status, the size of the decedent’s estate, and other factors relevant to the particular case.  
Unfortunately, due to this divide, practitioners cannot look to CPLR 2106 as their “saving grace” in particularly difficult estates, where the decedent left no surviving relatives or close friends on domestic soil. However, despite the fact that the recent legislative changes to CPLR 2106 may not add a reliable tool to the practitioners’ toolbox, a tool, nonetheless, has been added and should be used when a traditional affidavit cannot be obtained for, as provided in SCPA § 102 and 22 NYCRR § 207.1, when the SCPA, EPTL and Uniform Rules of the Surrogates’ Courts do not provide otherwise, the CPLR is to be followed and applied in all Surrogates’ Courts proceedings.

Note that while the Surrogates’ Courts are not, at present, able to articulate a uniform response in regard to their acceptance of these foreign affirmations and the evidentiary weight to be afforded them, this topic will be the subject of debate and consideration at future meetings of the Surrogates in hopes that a uniform response or rule will emerge to guide practitioners. 
Christopher C. Haner, Esq. is an associate attorney at Cona Elder Law, LLP. Mr. Haner concentrates his practice in the areas of probate, estate administration, Medicaid eligibility and planning, estate planning and guardianships. He is a certified Guardian, Court Evaluator and Counsel to incapacitated persons and is an IRS Accredited Representative. He can be reached at chris.haner@conalaw.com or 631.390.5000.