Do you have assets? Do you own a house? Have you been married more than once? Do you have children from more than one relationship? Are you concerned about what happens after your death to your spouse and/or your children? Are you single? All of the above individuals need a Will.

Estate contests often develop between children from the first marriage and the second wife. Issues arise when a man or a woman has children from more than one relationship. Sometimes loved ones have financial difficulty and the possibility of receiving assets in an estate brings out the worst in them.

There is a simple way to avoid unnecessary expensive litigation that can last from months or years. Write a Will! A Will states who your loved ones are, what your assets are and who will receive your assets at the time of your death. No one looks forward to dying. The thought of writing a Will is often an issue that individuals seek to put off. However, a Will should be written when you are competent and healthy not right before your death.

Attorneys that handle Wills & Estates prepare Wills. They are generally speaking inexpensive documents to have prepared. They simplify your end of life issues and allow your assets to pass in an orderly manner. Wills cut down on financial disagreements developing among your heirs and loved ones.

If you die without a Will your assets pass to your loved ones through administration proceedings. These proceedings can be time consuming and tedious. More than one person can request to be the Administrator of your estate. This can lead to arguments, bad feelings and increased attorney’s fees.

If you have assets or loved ones, you need a Will! Have it written by an attorney before you are too sick and old to deal with it.

Should you have questions regarding drafting a Will, feel free to call the Law Office of Elliot S. Schlissel to discuss these issues at 1-800-344-6431 or email us at schlissel.law@att.net.

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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

This is the first post in a series of short videos by New York attorney Elliot S. Schlissel, Esq, providing basic information about important aspects of Estate Planning. This informational video is entitled, “Who Needs a Will.”

Mr. Schlissel’s is a leading Elder Law and Wills Trusts and Estates attorney in the 5 Boroughs of New York, Nassau and Suffolk Counties so we are pleased to provide this information to Elliot Schlissel New York Law Blog readers.

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