Additional Means to Avoid Contested Probate
By
C. Raymond Radigan and Frank J. Gobes

(Published in The New York Law Journal - July 29, 2005)

 In our article published on May 19, 2005 (New York Law Journal, at p. 3), we set forth some ways to avoid contested probate. Today's article continues that theme.

 Keep in mind that some contested probate matters cannot be avoided by the estate planner/will draftsperson. Sufficient animosity grips some families over a period of years (sometimes decades or even generations) that there is simply no way to avoid a contest. In those situations, the goal of the will draftsperson is to make it difficult (or better yet, impossible) for the objectant to prevail.

 In many other situations, there is much less animosity among the family members. In those situations, contested probate can be avoided by being careful and thorough during estate planning, will drafting and will execution. The statistics in probate contests prove that, while the rate of favorable determinations recently has risen for contestants, their success rate is still very low.

 In any event, the mindset of the practitioner should always be that any carelessness will be exploited and meticulous work will discourage possible future contestants.

Typical Objections

 The typical objections to probate are lack of due execution; lack of testamentary capacity; fraud and undue influence. One or more of the above objections may be raised and the contestant need only be successful on one of these objections in order to prevail in having a will denied probate.

 The will proponent has the burden of proving that the will was duly executed; in other words, that the execution of the will complied with the formal requirements of Estates Powers and Trust Law (EPTL) § 3-2.1. A will execution requires two witnesses. A careful reading of EPTL § 3-2.1 will reveal that, among other things, there is no requirement that the two attesting witnesses actually witness the testator execute the will (the testator can acknowledge the signature to the witnesses after the signing of the instrument) nor do the two witnesses have to meet each other.

 However, the purpose of this article is not to create interesting will ceremonies, which may meet the statutory requirements. Instead, we will emphasize the ideal or routine will ceremony, since our goal is to discourage, or prevail in, a will contest.

 An attorney should always supervise a will execution ceremony. There are two main reasons for attorney supervision. First, attorneys are more likely to know the requirements of due execution (especially after the reading of this article by those who are not trust and estate practitioners). Second, there is an inference that the execution was made in accordance with the requisite statutory requirements if an attorney supervised the execution of the will. Thus, an attack of the will is made more difficult.

Supervising Attorney's Offices

 Whenever possible, a will execution should take place at the offices of the supervising attorney. There are many reasons for this. The attorney can more easily control the ceremony from his own conference room. For example, he can readily arrange for "qualified" (more on this below) witnesses to be available. In addition, he will be able to get last-minute changes word-processed. Manual additions and deletions tend to invite additional scrutiny, such as what was done first, the will execution or the manual changes. Also, the attorney can control who goes in and out of his own conference room as opposed to settings outside of his law offices. Beneficiaries have no place at the will execution ceremony. Further, a simple thing like a working stapler is more likely to be found in, or brought to, the conference room.

 An attorney who supervises the will execution ceremony can easily arrange for "qualified" witnesses. Ideally, "qualified" would be defined as experienced trusts and estates attorneys or staff, since they are trained to understand what should occur, or be accomplished, at a will execution ceremony. A cursory review of the official affidavit of attesting witness form reveals that the attesting witness must do more than simply witness a signature. The deponent swears that "the decedent...in all respects appeared to be of sound and disposing mind, memory and understanding, competent to make a will...." The "qualified" witness observes, listens to, and converses with, the testator prior to the will execution ceremony. In doing this, the witness can, with confidence, sign the aforementioned affidavit-and later survive a hostile Surrogate's Court Procedure Act (SCPA) § 1404 cross-examination.

 As stated above, the attesting witness should converse with the testator prior to the will execution ceremony. It would be ideal if the attesting witness had numerous conversations with the testator within a few days or a couple of weeks preceding the execution of the will. We recently represented the proponent at a § 1404 examination at which an attesting witness was asked when she first met the testatrix. The witness, a young associate attorney, answered, in essence, about two weeks prior to the will execution when the testatrix came into the offices to discuss her estate planning. The witness further testified that she had sat in on much of that initial estate planning conference and that the testatrix was articulate and asked many questions regarding taxes. The witness was then asked if she had seen the testatrix again prior to the day of the will execution. The witness answered, basically, that a week before the will execution, the testatrix came in to drop off a real estate deed and tax returns. The witness was asked whether she had any discussions with the testatrix that day. The witness testified that she introduced the testatrix to a paralegal coworker who noticed the testatrix's New York Mets baseball cap and mentioned that he was going to coach his son's Little League team this year for the first time and was concerned that he did not know how to keep a scorecard (a record of a team's at-bats, hits, runs, and so on). The testatrix described how she had been keeping scorecards for 60 years (an old Brooklyn Dodgers' fan) and that she was a retired statistician for an advertising company. She mentioned how she had just come from Senior's Day at Shea Stadium (she took the LIRR) and pulled from her bag a meticulous scorecard which she had kept that day. She allowed the paralegal to make a photocopy of the scorecard and explained some of the nuances in keeping a scorecard. The discouraged look on the examining attorney's face was priceless and objections to the will were never filed.

 At times, it is not possible to have the will execution ceremony at the attorney's office due to the testator's illness. A will execution performed at the testator's home gives the potential will contestant reason for hope and a will executed at a hospital may cause outright elation among relatives omitted from the will. It would be ideal that a will executed a home be supervised by the attorney draftsperson, be witnessed by him or her and by another attorney, a paralegal or an experienced legal secretary.

Will Executed at Hospital

 With proper planning, a will executed at a hospital should survive probate. We had a situation in which an elderly woman was in the final stages of a terminal illness. One of her children had been behaving terribly toward her for years and she made the decision to disinherit him. We were sure that any new will would be challenged. We explained our concerns to her and asked her for her medical records. We noted that her medical records contained very little information regarding her mental health. She was on numerous medications, some of which caused extreme drowsiness. In addition, there were fluctuations in her body temperature during the course of a day, which directly affected her alertness. A decision was made to have her evaluated by a psychiatrist, who was told that the woman wished to make a new will. We learned that the woman's condition varied during the course of a day and that her ability to function might depend upon the issue that was presented to her.

 On one particular occasion, we visited the woman while she was being told by hospital staff that she could never return to her home, that the most she could hope for was to be discharged to a hospice which would provide a more peaceful environment.

 She understandably became very agitated and we noted that it was fortunate that we did not plan for a will execution ceremony that day. In conversations with the woman, we learned that she had two good lifelong friends and that she had confided in both over the course of the previous year and a half that she was strongly considering disinheriting her son. It was decided that these two knowledgeable individuals would be the attesting witnesses to her will. They were provided in advance with the standard affidavit of attesting witness form so that they could review it and know what was expected of them as witnesses. It became clear that the woman was usually lucid in the early mornings and faded each afternoon. So, the next day, the woman was examined by her primary physician at 9:00 a.m. and then by the psychiatrist, who both took notes. Immediately thereafter, her will was executed.

Will Execution Points

 The following points are worthy of consideration for execution of a will:

We prefer one pen to be shared by the testator and witnesses during the will execution ceremony. Various color pens on the will raises questions as to whether everyone was present at the same time. The pen should be tested prior to the testator attempting to use it. A malfunctioning pen could cause a usually strong signature to resemble a weak scribble.

Although the statute does not require a testator to initial every page of the will, we follow that procedure in our office because it is some evidence that the testator looked at each page. If you have the testator initial each page, you must check for possible omissions immediately after the will is signed, since the inference of a missing initial would be that the testator did not look at that page.

It is good practice to staple the will at the will ceremony prior to execution and make a point of allowing the witnesses to observe the stapling at the execution. The testator should not sign an unstapled will; the supervising attorney wants to eliminate the possibility of page substitution following the ceremony.

Immediately prior to stapling the will, make sure that the pages are in the proper sequence. EPTL § 3-2.1(a)(1)(B) states "no effect shall be given to any matter, other than the attestation clause, which follows the signature of the testator...." Therefore, a problem is created if, for example, the signature page is stapled as the third page of a six-page will document.

 It is not unusual for a testator to sign numerous documents, such as a power of attorney, health care proxy and/or living will immediately prior to or after the signing of the will. The supervising attorney should isolate the will from the remainder of the pile of documents and announce that he is holding the will, the only will in the pile of documents, and specifically ask the testator if he wants to review his will and then ask the attesting witnesses to witness the will execution. This exercise will highlight the single will document in the minds of the attesting witnesses. This is especially important with regard to the novice attesting witness. The supervising attorney wants to make sure that an attesting witness will not testify incorrectly at his § 1404 examination that he believes that the testator signed three or four wills that day. Finally, if there is any possibility that the will may be contested, a simultaneous memorandum should be prepared and signed by the supervising attorney and subscribing witnesses, describing the will signing ceremony.

 As stated earlier, the typical objections to probate are: lack of due execution; lack of testamentary capacity; fraud and undue influence. In this article, we focused mostly on the execution of the will (and to some extent capacity). Due execution is an area which is usually within the control of the supervising attorney.

Forthcoming

 In our next article, we will focus on testamentary capacity, fraud and undue influence including indicia that may suggest possible problems in the eyes of the alert estate planner/will draftsperson.

 C. Raymond Radigan is a former surrogate of Nassau County and of counsel to Ruskin Moscou Faltischek. He is also chairman of the advisory committee to the Legislature on estates, powers and trusts law and the Surrogate's Court Procedure Act. Frank J. Gobes is a senior associate at Ruskin Moscou.

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