The Law Offices Of Michael Camporeale

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How Does One Prove Due Execution And Capacity For A Valid 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.

What Is Due Execution?

The proponent has the burden of proving due execution by a fair preponderance of evidence. He can rely on a presumption of regularity if an attorney supervised the execution. New York requires strict compliance with EPTL 3-2.1, which is the statute of wills. If the decedent executed his written will in another jurisdiction, it may be admitted into probate under EPTL 3-5.1, although the formalities with which it was executed differ from New York. If the decedent filed the required formalities of the home state where it was executed, then New York will admit the will to probate.

What Are The Elements Of Due Execution?

The elements require that the testator’s signature be at the end of each will just before the attestation and witness attestation clause. Any material after the signature is considered invalid, but the will can still be probated without the material that falls underneath the signature (unless it is necessary in order to understand the will or carry out the testator’s general plan). Any material added later than the testator’s signature would be invalid, whether it precedes or follows in space of the signature. The burden of establishing when the additions or alterations were made should be on the person who benefits from them. If no such proof exists, then the court will ignore the alterations and grant probate to the will as originally written.

If a testator cannot sign his or her own name because of a physical infirmity, then another person can sign for him or her but cannot be counted as an attesting witness. So, at least two others would be needed in order to have a valid will execution. If the person signing for the decedent does not sign his or her name, the will is invalid. The courts are very strict about this requirement. A testator may also sign with just the making of a mark, such as an “X” so long as it signifies the signature on the will. As discussed earlier, there must be at least two attesting witnesses that sign at the end of the document. Attesting witnesses must know or understand that the testator has placed their signature on the document. A testator ordinarily signs in the attesting witness’ presence, but if he does not, he can acknowledge his signature to them before or after the attesting witnesses sign.

The testator must tell the witnesses that the document is his or her will. If he does not tell them directly, he must get this fact across to them. If they do not know it via the attestation, then the will is invalid. The attesting witnesses need not and generally do not know that there are sup positive provisions in the will. It is also required that the testator ask the attesting witnesses to sign his will. The attesting witnesses must sign within a 30 day period of when the will is executed by the decedent. The execution ceremony has no specific time limit, but it must be during a period of time that is satisfactory to the surrogate. The testator must ask the attesting witnesses to sign, which they will have 30 days to do. For example, if a testator signs his will on April 1st, then both witnesses must sign by April 30th.

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New York Attorney Michael Camporeale

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