Challenging an Invalid Will

December 9, 2009

Pursuant to EPTL § 3-2.1, a Will can only be probated if it conforms to the following requirements, among others:

  • Will must be signed at the end and initialed on every page in front of the witnesses.
  • The Will must be signed in the presence of at least 2 witnesses (Some states require 3)
  • The witnesses must also sign an attestation clause.
  • The “Testator” must “Publish” the Will by saying something like “This is my Will.”

A Probate judge in the Surrogate’s Court may invalidate a will based on several types of objections. If there is proof of undue influence, lack of testamentary capacity, duress, or undue influence, the Will will be invalid.

“Lack of testamentary capacity” means that the Will signer does not understand that what he’s signing is a Will, that he does not understand the nature and value of his property,  does not understand who the natural objects of his bounty are (meaning that normally one’s spouse and children are the natural recipients of his or her property after death), or that he does not understand the nature of the disposition he is making (i.e., to whom he is giving his property in his Will).

A decision came out on Monday which is a great example of someone who successfully used the “lack of testamentary capacity” objection to the probate of a Will. In that case, several siblings of a deceased man successfully blocked the probate of their brother’s Will because he lacked “testamentary capacity.”

As he lay dying in the hospital of liver disease, the man’s x-wife and her lawyer got the him to sign a Will that gave her all of his assets. He died of the disease just three days later. In Matter of Stachiew, 96211/2007/D, a Dutchess County Surrogate’s Court judge denied probate in this case,  holding that the proponent of the Will, the x-wife, had failed to prove that the decedent was sufficiently aware of the nature and extent of his property, what he was signing, and how he was changing his testamentary distribution plan through the Will. The judge found that the attorney had induced the decedent to sign the Will without regard for his ability to understand what was going on, and was not convinced by the attorney’s “self-serving” testimony to the contrary.

Cases like this illustrate how important it is that individuals hire a competent and ethical attorney who will take all reasonable measures to ensure that every requirement of New York’s Estates, Powers, and Trusts law is complied with.

Our office can assist you if you need help with:

Please call our office at 800-344-6431 or e-mail us for assistance.

Picture courtesy of worlddub.blogspot.com

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