In order for a Last Will and Testament to be valid, it must be admitted to probate. Probating a Will in New York requires following all the procedures in the Surrogate’s Court. Many times a person who is disinherited or does not receive what he expects in the Will provisions feels that the Will must be invalid. The conclusion reached is that the document must have been procured through fraud, undue influence or other wrongdoing.
The reality of these cases is that most Wills that are prepared by an attorney and executed under an attorney’s supervision are found to be valid. When the statutory formalities provided by Estates, Powers and Trusts law section 3-2.1 entitled “Execution and attestation of wills; formal requirements” are followed, a contest of a Will is usually dismissed. While undue influence and other grounds may result in a denial of probate, such an outcome is difficult to achieve. The Courts typically prefer to see that a testator’s intentions are carried out through the terms of a Will rather than left to the uncertainly of intestate distribution. The New York Probate Lawyer Blog has posted many articles regarding probate.
A Manhattan estate case entitled Estate of Menchini demonstrates that the Courts tend to favor admitting a Will to probate. Menchini was decided on March 18, 2019 by Manhattan Surrogate Rita Mella. The decedent had left most of his estate to a friend who was also named as an alternate executor. The decedent’s brother challenged the Will based upon lack of due execution and fraud. It appears that the Will was not prepared by an attorney, nor did an attorney supervise the execution ceremony. The Will was signed in the office of a Reverend of a local church. There were two witnesses, although one witness predeceased the decedent and was not available to testify. Also, a notary was present to notarize the witness affidavits.