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Helpful Steps to Avoid a Contested Probate Proceeding

April 4, 2019 • Posted By • Trusts and Estates

On March 8, 2019, the New York Law Journal published C. Raymond Radigan and Lois Bladykas’ article “Plan to Avoid a Contest.” The article is the first part in a series of articles concerning contested probate proceedings in Surrogate’s Court. “Plan to Avoid a Contest” addresses the extra steps that should be considered by an estate planning attorney to avoid a contested Will proceeding.  

To probate a Will in Surrogate’s Court there must be proof of testator’s capacity and due execution. An estate planning attorney should be aware of the common claims of lack of due execution, undue influence, lack of capacity, and fraud by beneficiaries, distributees or others. The estate planning attorney should take extra precautions to ensure that there is evidence to rebut these claims.

Proper note taking during meetings with testator is a precautionary step to rebut claims. An established, documented practice for an estate attorney’s protocol concerning testator’s capacity and due execution of Will is helpful in establishing the proponent’s prima facie case for probate.

The Will should be reviewed in detail with the client; the client must sign the will, publish the will, and request at least two witnesses. The testator and witnesses must sign the Will. No one other than the testator, witnesses and notary should be present at the execution. Another extra precaution an attorney should take is stapling the Will before it is signed by the testator and witnesses, to avoid a claim down that pages were removed, revised or added after the Will was signed.

Additionally, estate attorneys should familiarize themselves with “self-proving affidavit.” Self-proving affidavit is attached to the Will and can be used as an alternative to live witness testimony in a probate proceeding. The affidavit is signed under oath by the witnesses and sets forth the witnesses’ observations as to the formalities of the Will execution and the testator’s testamentary capacity. Without a self-proving affidavit, the proponent of the will may have to produce the witnesses for live testimony concerning the execution. This is a great concern because witnesses are frequently unavailable and difficult to track down, because they have passed away, moved out of state, or are no longer affiliated with the testator or attorney.

Further, only one original Will should be executed, as there may be a presumption of revocation if other originals cannot be located. Especially if one original was in the decedent’s possession prior to death. An estate attorney should consider retaining the original Will on behalf of the client for safekeeping, to ensure that there will be no tampering. An estate attorney may choose to give the original Will to the client with instructions to keep it safe in a vault or safe deposit. The testator can also give the Will to another for safekeeping, such as the nominated executor. An original will may also be filed with the Surrogate’s Court for safekeeping.

Each of these options for safekeeping the original Will are beneficial to the proponent of the will, but they also present drawbacks. An estate attorney may have thousands of client Wills from decades of practice, with no obvious way of determining whether those Wills have been superseded by future wills, or whether the clients have passed away. A testator in possession of the original Will may misplace it or a disgruntled family member may tamper with or destroy it. An original will placed in a bank safe deposit box or bank vault would require a Surrogate’s Court’s authorization to open the box to search for the Will. SCPA §§ 2003; 1401. If the original will was filed with the Surrogate’s Court, beneficiaries who are removed in a later Will are entitled to notice of the removal, which opens the door for more litigation.

If a possible contest is envisioned at the time the Will is executed, the concerns should be documented. For example, if a testator is cutting out a spouse or child, leaving his or her estate to non-family members, or if a blended family or second marriage is involved, extra precaution should be considered. By documenting any concerns or irregularities, the information can be used to rebut claims of lack of due execution, undue influence, fraud and incapacity in the future.  

An estate planning attorney should take extra precautions when meeting with testator, drafting and executing Will, and safekeeping the Will. Extra precautions and steps detailed above ensure that the attorney can rebut claims with evidence when probating the will in Surrogate’s Court.