New York Probate Lawyer Blog
In order for a Last Will and Testament to be valid, it must be admitted to probate. Probating a Will in New York requires following all the procedures in the Surrogate’s Court. Many times a person who is disinherited or does not receive what he expects in the Will provisions feels that the Will must be invalid. The conclusion reached is that the document must have been procured through fraud, undue influence or other wrongdoing.
The reality of these cases is that most Wills that are prepared by an attorney and executed under an attorney’s supervision are found to be valid. When the statutory formalities provided by Estates, Powers and Trusts law section 3-2.1 entitled “Execution and attestation of wills; formal requirements” are followed, a contest of a Will is usually dismissed. While undue influence and other grounds may result in a denial of probate, such an outcome is difficult to achieve. The Courts typically prefer to see that a testator’s intentions are carried out through the terms of a Will rather than left to the uncertainly of intestate distribution. The New York Probate Lawyer Blog has posted many articles regarding probate.
A Manhattan estate case entitled Estate of Menchini demonstrates that the Courts tend to favor admitting a Will to probate. Menchini was decided on March 18, 2019 by Manhattan Surrogate Rita Mella. The decedent had left most of his estate to a friend who was also named as an alternate executor. The decedent’s brother challenged the Will based upon lack of due execution and fraud. It appears that the Will was not prepared by an attorney, nor did an attorney supervise the execution ceremony. The Will was signed in the office of a Reverend of a local church. There were two witnesses, although one witness predeceased the decedent and was not available to testify. Also, a notary was present to notarize the witness affidavits.
After a full review, the Court admitted the Will to probate. Among its findings, the Court stated that there was a prima facie demonstration that the decedent possessed testamentary capacity when the Will was executed. The Court relied upon the witness affidavits, the attestation clause, the testimony of the surviving witness and the notary public. This same evidence showed due execution as to the Will being signed or acknowledged in the presence of the two witnesses and signed at the end of the document and declared to be the decedent’s Will. Overall, the requirements of EPTL 3-2.1 were satisfied. Interestingly, the Court rejected any grounds for objection due to the Will being unstapled or that the witnesses did not fill in their full residences or that the expiration date of the notary’s commission was incorrect.
As to the Objectant’s accusation that the Will was procured through fraud, the Court found that any assertion that pages of the Will were substituted for the original was pure speculation and without support. It is important to recognize that the Court concluded that “the fact that objectant was only left a small bequest under the decedent’s Will despite their close relationship does not create an issue of fact requiring a trial….”
Contesting a New York Will is not easy and should only be done if there appears to exist a reasonable basis to question the Will’s validity. I have represented many individuals, both objectants and named Executors in contest cases and other estate and trust litigation matters in the Surrogate’s Court. Call Me Now for a free confidential review of your estate issue. We offer reasonable and flexible fee arrangements and personal representation.
New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 40 years resolve issues relating to guardianship and probate and estate settlement throughout New York City including the Bronx, Queens, Brooklyn, Manhattan, Nassau and Suffolk County. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial free consultation.