As a NY estate lawyer with more than two decades of experience probating and litigating NY estates one of the most frequently asked questions I receive is how can I contest a NY will? My response is almost always it depends. By far one of the most difficult tasks in all of law is to set aside an attorney drafted Last Will & Testament. By design, these documents are meant to be drafted and enforced even when executed under the most dire of circumstances when the testator is in and out of lucidity near the end of their life. In fact it takes less capacity to execute a NY will than almost any other contractual document.
However, as a NY estate lawyer who has successfully litigated this issue time and time again I have some insight into how a NY attorney drafted will can best be attacked. One of those avenues of attack involve the document’s due execution.
Estate of Wilma Williams
When the 93 year old widow, Wilma Williams recently passed away, she was survived only by several nieces and nephews. Wilma had no spouse, children nor siblings at the time of her passing. Prior to her death, Wilma had suffered a massive stroke leaving her partially paralyzed, wheel chair bound, deaf and living in a retirement care facility. After her passing, Williams’s nieces and nephews were extremely surprised to learn that their aunt had quietly amassed a nearly $2 million fortune investing in the stock market. However Williams’s family was even more surprised to learn she had left nearly all of that inheritance to a formerly disbarred attorney named Bob Machen who had even spent time in jail for fraud and his son. To make matters worse evidence showed Wilma Williams never even met Bob Machin’s son.
Naturally, Wilma’s nieces and nephews contested her purported will. In sworn deposition testimony, the facts showed that on July 31, 2018, upon learning of Wilma Williams’s small fortune, attorney Bob Machen drafted a will leaving nearly all of Williams’s entire estate to himself and his son, who was a complete stranger to Williams. The deposition testimony revealed that Machen entered Wilma Williams’s retirement facility while misrepresenting himself to staff and residents as being Wilma’s son. Once inside the facility, Bob Machen asked a stranger within the facility, Toni Foreman, to sign the document under false pretenses. The false pretenses being that Machen held himself out as Wilma’s son and never advised the witness, Toni Foreman, that the document she was witnessing was in fact Williams’s Last Will & Testament. Furthermore, Foreman also testified at trial that she never in fact witnessed Wilma Williams sign the document purporting to be Williams’s Last Will & Testament in front of her. Based upon the foregoing the purported Last Will & Testament of Wilma Williams was denied probate.
What is due execution?
When a NY will is executed the NY estate law known at EPTL 3-2.1 dictates that it must be drafted and executed with all of the formalities as required by law. Should your NY will ever be scrutinized or subjected to a NY will contest proceeding the proponent, the one offering the document for probate who is normally the named executor, has the burden of proving due execution of the will Matter of McDonough, 201 A.D. 203, 193 N.Y.S. 734). When it is found that the execution of the NY will was drafted and supervised by a NY estate lawyer there is a presumption of proper due execution of the NY will being offered for probate (Matter of Kindberg, 207 N.Y. 220, 100 N.E. 789, 1 N.Y. L. Cas. 469) also known as the presumption of validity. Additionally, the NY estate attorney’s self-executing affidavit of due execution that accompanies nearly all NY estate lawyer drafted wills permits the court to infer proper execution Matter of Nelson, 141 NY 152, 36 N.E. 3. Once the record establishes a base case of due execution of the document the burden then shifts to the objectant to establish the existence of any triable issue of fact to deny the NY will probate Zuckerman v. City of New York, 49 NY2d 557, 404 N.E.2d 718, 427 N.Y.S.2d 595. This makes it extremely challenging if not impossible to attack a NY will on the basis of due execution once the proponent has established the document was duly executed and supervised by the NY estate attorney.
While the attorney presumption of validity makes it overwhelmingly difficult to contest a NY will on the basis of due execution this presumption is not infallible. Where evidence is presented at trial, as in the Estate of Wilma Williams mentioned above, that the testator did not in fact execute the document in front of the witness and that there was no publication in that nobody knew the document was a will, the will may be denied probate based on the lack of due execution. While circumstances like these occur infrequently they do occur.
If you think a loved one or friend was the victim of undue influence or fraud feel free to call us at (718) 261-2444 to speak with an experienced NY estate lawyer for a free consultation. Our offices have been probating and successfully contesting NYC estates for New Yorkers in the Counties of New York, Queens, Kings, Nassau, Suffolk, Bronx, Richmond, Westchester, Orange, Rockland and Dutchess for years.
