There are countless articles and advisory papers that have been written in which people are urged to prepare an Estate Plan. The use of advanced planning documents such as a Last Will, Living Will, Power of Attorney, Health Care Proxy and Living Trust allow a person to specify the manner in which assets are to be managed and tranferred and substituted decision making can be established.
As discussed in many posts in the New York Probate Lawyer Blog, where these planning papers do not exist, the disposition of a person’s estate is left up to the inheritance provisions of State law relating to intestacy.Not only is it important to create the written documents that set forth asset disposition, it is equally important to have these papers properly prepared and executed. New York Estate Lawyers are routinely faced with documents that purport to be Last Wills but that are prepared and executed so poorly that they end up as the subject of a Will Contest in estate litigation.
This Blog has repeatedly talked about the necessity for due execution of a Will. Specifically, New York Estates, Powers and Trusts Law (EPTL) Section 3-2.1 entitled “Execution and attestation of wills; formal requirements” sets forth the method by which a Will must be executed and attested to. The Surrogate’s Court calendars are filled with contested Will cases where these formalities are not followed. The Court must be satisfied that the statute is complied with or the purported Will cannot be admitted to probate. This means that the terms of the Will are not validated and given effect by the Court and the decedent’s estate is to be distributed to the decedent’s next of kin. Thus, the decedent’s proposed estate plan will not be followed or given any effect.
While the requirements of EPTL 3-2.1 are rather simple and straight-forward it is sometimes amazing to see how these procedures are ignored. A recent case presented to Queens Surrogate Peter Kelly provides an example of a failure to abide by the statutory framework. In Will of Una Keene, decided on April 24, 2015, the Surrogate held a hearing in which a purported Will was presented for probate. Since the signing of the Will was not supervised by an attorney, certain legal presumptions regarding due executor were not available to the proponent. According to the Court testimony the Will appeared to have been witnessed by two individuals who happened to be in a waiting room of a car service office. Further testimony indicated that because the witnesses needed to leave they signed the purported Will before the decedent. As it turned out, the proponent could not even obtain the attendance of these witnesses at the hearing and was forced to try and prove the validity of the Will through the testimony of a person who notarized the document. As can be anticipated, the Court found that the proponent did not prove the Will was properly executed and dismissed the probate petition.
As shown by the Keene case, not only is it important to create an estate plan, it is also essential that the documents be professionally prepared and their execution be properly supervised. I work closely with clients to assist them with planning and document execution. I have also represented many persons in cases involving the contest of Wills. If you have any questions regarding on estate plan or probate, please call me for a free discussion.
An experienced New York trusts and estates lawyer can assist with guidance for proper Will preparation and execution. New York Probate Attorney Jules Martin Haas, Esq. has been representing clients in New York in Trusts and Estates matters and Surrogate’s Court proceedings throughout the past 30 years in Suffolk and Nassau and other counties. If you or someone you know is involved with or has questions about a New York estate matter, please contact me at (212) 355-2575 or email: firstname.lastname@example.org, for an initial consultation.
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