As set forth in the New York Estates, Powers, and Trusts Law (EPTL), an interested party may object to a Last Will and Testament being offered for probate on the basis of undue influence exerted upon the Testator (the person who signed the Will).
If it is determined that an interested party or family member coerced the Testator to include or disinherit a family member (or another 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 the Testator must have had no option except to heed the word of the perpetrator. Additionally, such person must stand to benefit from the Will being written in such a manner.
While there is a presumption of validity of the Will when the execution of same is overseen by an attorney, there is usually a great deal of information that can be elicited during the SCPA 1404 examinations. These examinations are essentially depositions by the attorney for the interested party who is seeking to possibly object to the Will being admitted to probate.
In addition to serving discovery demands upon the proponent of the Will (usually the nominated executor) and/or their attorney, the lawyer for the possible objectant would have the opportunity to question the attorney-draftsperson who wrote the Will in addition to the two (2) disinterested witnesses who were required to witness the Testator sign the Will and see each other sign in their capacity as witnesses. These witnesses can not have any pecuniary interest in the Will being admitted to probate, nor can these witnesses be a spouse or child of such persons.
Depending upon the outcome of this examination, further depositions of other interested parties and individuals may become necessary, in addition to the service of further discovery demands for documentary evidence concerning possible undue influence.