The Law Offices Of Michael Camporeale

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How Do You Prove Due Execution & Capacity For A Valid NYC Will?

A will enjoys no presumption of validity; the court grants probate only if it is satisfied that the will is valid. The court can deny a will probate on the grounds of lack of testamentary capacity, failure in due execution, fraud and/or undue influence. If no such grounds exist, then the court must admit the will to probate and the will and decree must be recorded. The surrogate court must determine the validity of the will, even if the will is admitted to probate on waivers without a contest. If the will has any function left to perform, such as the naming of a fiduciary or the revoking of prior wills, then the court should not refuse probate on that ground.

If the proponent offers a will and objections are raised, then the matter will proceed to a hearing or trial. If the proponent makes a prima facie case and the objection fails to raise any issue of fact, then the surrogate has the authority to grant summary judgment. However, the courts rarely do that. In a jury trial, the surrogate courts can also direct a verdict or set aside a jury verdict if the record does not support the findings. The surrogate court’s findings are entitled to great weight, and an appellate court can only overturn them if they are unsupported by the record. The surrogate court has the authority to grant or deny summary judgment motions and deny probate. The surrogate court has the responsibility to judge the validity of the will.

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New York Attorney Michael Camporeale

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