{Read in 4 Minutes} As a Trusts and Estates attorney, I frequently handle Estates. This may also include a Will Contest, whether I’m representing the nominated Executor in defending the Will against the challenge or representing a family member, spouse, beneficiary, and/or a prior Will. Any of these people may also challenge the Will. As I’ve discussed in other articles, people can challenge Wills based on a lack of testamentary capacity, undue influence, or lack of proper execution.
In a prior article, I also talked about whether or not it’s a good idea to DIY your Will. In general, there is absolutely nothing wrong with DIY Wills. The place where people run into problems is that they don’t follow the directions. Under New York State statute, one needs to sign a Will in a certain manner for it to be valid. It needs the person who makes the Will (called the Testator) to sign the Will at the end of the document. They must identify the document as their Last Will and Testament to two witnesses. They must also ask the witnesses to serve as witnesses. This is what’s known as the “due execution” of a Will. The Surrogate’s Court needs to ensure all requirements are met to admit the Will to probate. One of the advantages of having an attorney draw up your Will and be present for its execution is that the law presumes that if an attorney is present, all of the requirements of due execution are met. It’s up to the objecting party to prove otherwise. This can be a very helpful advantage to an Executor when bringing the case forward, either for a summary judgment or for an eventual jury trial.
The attorney-supervised Will gives the Executor an advantage in offering it for probate. However, it is not the end of the story. There is absolutely no such thing as an ironclad Will. Yes, you absolutely can challenge a Will drawn up by an attorney. If you’re going to challenge a Will that’s supervised by an attorney, here are some things you might want to consider, to think about how likely or how successful your challenge might be.
1. Was the attorney licensed in New York?
It pays to check and make sure; like most states, New York maintains a free online registry of all licensed attorneys. The presumption doesn’t exist if they’re an attorney licensed in another state.
2. How involved was the attorney in the drafting and signing process?
Did they have extensive meetings with the deceased, discuss their wishes, draft the document, and were they present at the signing? Or are they a friend of a friend who signed it as a favor on the hood of a car in the parking lot during a tailgating party?
3. What percentage of that attorney’s practice is dedicated to Wills, Trusts, and Estates?
Ultimately, the attorney who drafted and supervised the signing of the Will may wind up as a witness at the trial. The jury will presumably give the Trust and Estates attorney’s opinions and recollections more deference than someone who just dabbles in this field and may not necessarily know what to look for.
Again, it’s important to note that there are no absolute extremes here. Just like an attorney-supervised Will may not necessarily be valid, it’s not a foregone conclusion that the Court will refuse to probate that Will. It’s very much situationally dependent, but these are some things that you should consider when you receive your Citation letting you know that there’s a deadline by which you have to file a challenge to the Will if you wish to do so. For more information on this topic, please, contact me.