New York Probate Lawyer Blog
Probating a Last Will and Testament in New York requires that the Court be satisfied that the Will complies with all the statutory and Court-mandated requirements. The primary source of reference is Estates, Powers and Trusts Law Section 3-2.1 entitled “Execution and attestation of wills; formal requirements.” This statute sets forth the manner in which a Will must be signed. For example, the statute says that the Will needs to be signed by the testator at the end of the document. There is also a requirement that there shall be at least two (2) attesting witnesses who must verify that the testator signed the Will in their presence. The New York Probate Lawyer Blog has many articles concerning issues that may arise with regard to the execution of a Will and estate settlement. In most instances, a Will is prepared by an attorney. It is also usually signed by a testator and witnesses under the supervision of an attorney. In these cases, there is a presumption that the requirements of the statute regarding proper execution were adhered to.
When someone wishes to contest a New York Will, there are typically a number of grounds which are asserted. Lack of due execution is one ground, as well as lack of testamentary capacity, undue influence and fraud. Forgery may also be alleged. During the probate proceeding, all interested parties are given notice regarding the probate case in Surrogate’s Court. This allows the parties to file objections to a Will and also to engage in pre-objection disclosure provided by Surrogate’s Court Procedure Act Section 1404 entitled “Witnesses to be examined, proof required.”
This blog recently discussed a situation where a person failed to timely assert rights and then sought to vacate a decree admitting a Will to probate. Such a situation recently was the subject of a Queens estate case entitled Estate of Cunningham, decided by Queens Surrogate Peter J. Kelly on June 27, 2023. In Cunningham, although objections to the Will were filed, the objectant failed to oppose a motion for summary judgment which sought to dismiss the objections. After the motion was granted and a decree admitting the Will to probate was issued, the objectant tried to vacate the decree.
The Court pointed out that in order to vacate a probate decree, a person must demonstrate a reasonable excuse for the default and a reasonable probability of success on the merits. Additionally, since the objectant in Cunningham was alleging that the Will was the result of undue influence, the Court noted that there must be shown a substantial basis to support the challenge to the validity of the document.
After reviewing all of the facts, the Court found that there was an insufficient showing to find a substantial basis for the claim of undue influence. In particular, the Court rejected the claim that since the attorney draftsperson also performed legal services for the charity who was the main Will beneficiary there was undue influence. There was ample evidence that the testator had a full opportunity to review the Will before execution and that the beneficiary designation was natural and unsuspicious. The Court also found that there was no evidence of fraud.
As can be seen from Cunningham, the probate of a New York will can be complicated. For over 40 years, I have represented clients in estate cases throughout New York. Do you have a question regarding an estate? Call Me Now for a free confidential review of your estate matter. 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.