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How Can An Estate Litigation Attorney Help Me Contest An Improperly Executed Will?

There are essentially four categories of objections that an interested party can make if they are going to object to a Will being admitted to probate. I will give a cursory review of the basis for said objections.

The first basis to object to a Will being offered for probate in the Surrogate’s Court is because the proper formalities of due and proper execution according to statute were not followed. This is where it becomes so important to have an estate attorney prepare, draft, and supervise over the will execution. The will must be witnesses by two (2)”disinterested parties”. This means that they cannot take under the terms of the will nor be the spouse or child of a person who would benefit by the will being admitted to probate. To be on the safe side, you should avoid having any family members related to the testator (person signing the Will) act as a witness. A qualified estate attorney knows the proper formalities to ensure that the will is executed properly and what language needs to be included to be sure that the will is admitted to probate.

The second basis for objection focuses on the potential lack of testamentary capacity of the testator. At every will execution ceremony, the attorney-draftsperson always asks the testator if they are of sound mind, not under the influence of alcohol or narcotics, and are able to execute a legal document. Of course, the attorney needs to conduct their own due diligence to ensure that the testator does not suffer from any mental disability or condition (i.e. Alzheimer’s disease or dementia) that would render them unable to execute such a document. However, this does not necessarily disqualify that person from being able to sign a Will. The Courts state that such person need only have a “period of lucidity” during the course of the day that would render them able to do so. Nonetheless, caution must be taken to ensure testamentary capacity.

The third basis for objection centers on undue influence. If it is determined that an interested party or a family member coerced the testator to include or disinherit a family member (or other person) from taking under the Will, that act could be deemed an act of undue influence that may subject the Will to being voided and not admitted to probate. The person who allegedly exercises undue influence must have had an opportunity to engage in such a practice, and that the testator had no option but to heed the word of the perpetrator, and that such person would stand to benefit from the Will being written in such a manner.

Finally, the fourth and least used basis for objection would be if the Will was executed and the Testator signed said document under a perpetrated fraud, then the Will could possibly be voided and the terms nullified.

Should you require an experienced estate attorney for estate administration or litigation, please contact the Law Offices of Michael W. Alpert at (516) 280-7288 or