Last week I attended six hours of classes sponsored by the New York State Bar Association to help attorneys gain a deeper understanding in their practice area and to keep them abreast of changes in the law. The subject of these classes centered around estate litigation – specifically, on the topic of will contests. Although our firm focuses mostly on drafting and planning, it is virtually impossible to be a good draftsperson and advisor without a deep understanding of the potential pitfalls that could lead to litigation.

What do these pitfalls look like? If a person with standing wants to challenge a Will, they can try to poke holes in it by raising one or more of the following issues:

  • There was “undue influence”
  • The testator lacked mental capacity
  • The Will was improperly executed (i.e. not enough witnesses, Testator did not know it was her will)
  • Fraud (Testator was tricked into signing document)
  • The Will was signed under duress (not Testator’s choice to sign)

In New York, the Surrogate’s Court Procedure Act (SCPA) §1404 allows anyone whose financial interests are adversely affected by the propounded Will to challenge its validity. First, the challenger is able to conduct discovery and gather documents such as the attorney-drafter’s file, the testator’s medical and financial records, correspondence to and from the testator, and photos of the testator. After discovery, the challenger can then proceed to an examination of the attorney-draftsperson and the attesting witnesses – the so-called “1404 Examination.”

What information is relevant in a 1404 Examination? The “3-2 Rule” (Uniform Rule for the Surrogate’s Court 207.27) allows any matter that may provide a basis for filing objections that occurred three years before and two years after the execution of the Will. Some examples of this are:

  • Was the Testator engaged in the process?
  • What was the Testator’s relationship with the attorney-draftsperson?
  • Did the Testator appear to be of sound mind?
  • What was the Testator’s relationship with the beneficiaries at the time of the Will execution?
  • Was the Will executed properly as per the Estates, Powers and Trusts Law (EPTL)?
  • Do the witnesses recognize their signatures on the Will?
  • Is there a presumption of due execution because the Will was supervised by an attorney?
  • Is there a presumption of testamentary capacity because there a self-proving affidavit was executed by the witnesses?

Once the 1404 Examinations are complete, the challenger can then decide whether to file objections to the Will.

Many attorneys can draft a Will. To do it well, an attorney-draftsperson needs to be well-versed with the rules in New York to understand and avoid future risks. Given the myriad ways in which a Will could be challenged, careful planning now could save your loved ones time, resources, and heartache down the road.

by Amy Kawa Posner, Esq.

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