There are a variety of pitfalls one can encounter if there will is not drafted properly, or if certain “formalities’ are not followed pursuant to the New York Estate Powers and Trusts Law (EPTL) that can make the will vulnerable to a contest by an interested party to the probate proceeding.
A skilled estate attorney will take the necessary steps and precautions to ensure that the will contains important provisions which can attest to the Testator’s (person executing will) capacity to sign a will. In other words, the attorney will see that the Testator is of sound mind, is not coerced by any person, is not under any undue influence, understands the English language, and is not under the influence of any alcohol or drugs that would affect the Testator’s ability to sign a legal document.
An experienced wills and trusts lawyer will also be sure that the Will is properly witnessed and acknowledged by at least two “non-interested” parties, or individuals who would not be beneficiaries under the terms of the will. This policy is put in place to ensure that the witness does not have a beneficial interest under the will, and therefore, may be prone to stating that a Testator may have capacity when in fact they may not. The attorney will ensure that the Testator declares the Will to be their last will and testament, that they revoke all prior wills and codicils, and authorize the two attesting witnesses to serve in that capacity in witnessing the will signing. This process is known as “due and proper execution”.
Should you have further questions on drafting your will, please contact the Law Offices of Michael W. Alpert, Esq. at 631-225-4603 or e-mail at malpert@alpertlegal.com