FAQ: Will Contests - Do I have grounds for contesting a will? (Part 2 of 6)

Grounds for Contesting a Will

Undue Execution <<<<
Revocation
Incapacitation
Fraud
Undue Influence

In Part 1 of this series on will contests, we discussed the following questions:

Who can contest a will?

and …

What are legitimate grounds for contesting a will?

In this post, we will get into the details of the first ground for contesting a will – undue execution.  When someone objects to a will on the basis of undue execution, what is being alleged is that the will was not duly executed.  Remember, the information below focuses on will contests in New York and more specifically on will contests in New York City.

Due Execution: Was the will properly executed?

Wills must be executed in strict compliance with the provisions of New York Estates, Powers, & Trusts Law (EPTL) §3-2.1.  The elements are due execution are:

The signature of the testator must appear at the end of the will, just before the witness attestation clause;

The testator must sign the will in the presence of each of the witnesses, or his signature shall be acknowledged to each witness as his signature;

The testator must declare to each of the witnesses that the document they are witnessing is the testator’s will; and

There must be two witnesses to the will. The testator must ask each witness to sign his will. Additionally, both witnesses must sign the will within 30 days of each other.

If the will was not executed in compliance with the above provisions, it is not a valid will and can be challenged through a will contest.

Examples of Improper Execution of a Last Will & Testament

1. Thomas executes his will at his estate attorney’s office in Manhattan by signing in the middle of page 5.  Thomas then adds language at the bottom of page 5, beneath his signature, leaving his Brooklyn apartment to his niece, Beth. 

What is the result?  Under New York law, although the will may be valid, the language after the Testator’s (Thomas’s) signature is considered invalid and ineffective.  The Brooklyn apartment would be distributed as though the additional language after Thomas’s signature did not exist.

2. Thomas wants to draft a will but is not physically able to travel from his Brooklyn home to his estate attorney’s office in Manhattan.  In order to accommodate Thomas, the attorney travels to Thomas’s home in Brooklyn where Thomas executes the will.  The attorney then takes the will back to his Manhattan office and has his two associates sign the will as witnesses. 

Problems?  Yes – two of them.  First, the Testator did not sign the will in the presence of the either witness nor did he acknowledge that the signature was his.  Second, the Testator did not declare to the witnesses that the document they were witnessing was Thomas’s will.  Under New York law, this will is invalid.

It is extremely important to properly execute a will; otherwise, it may be subject to a will contest in Surrogate’s Court on the ground that it was not duly executed.

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Daniel R. Antonelli
Representing trust & estate clients with an emphasis on estate litigation in the New York City Metro Area.