How to Avoid Contested Probate
by
C. Raymond Radigan and Frank J. Gobes

(Published in The New York Law Journal - May 19, 2005)

 Over the years, there has been an increase in estate litigation especially in second-marriage situations where often the children are close in age to the second spouse. Primarily because of increased wealth, we have a more litigious society. However, litigation is not only about money, it is also about emotions.

 Litigation is on the rise not only between the surviving spouse and children, but also among the children themselves, especially when one of the children was actively engaged in a business with the decedent. There are also emotional upsets when a parent attempts to take into consideration the wealth of his or her children.

 For example, you have a testator with two children, one a successful doctor, the other a teacher, and the testator decides to divide the estate in unequal shares in order to improve the financial health of the teacher. If all of this is explained in advance to the children and they understand, there should not be a problem. However, if it comes as a shock to them after the death of a parent, emotions take over and a will contest may ensue. Explaining the reasoning, economics and the overall estate plan in such situations could avoid a possible contest.

Discussing Estate Planning With Family

 The attorney draftsperson should do his or her best to get the client past the normal reluctance to discuss their estate planning with family members. The reason why his or her sibling is to receive more should be explained to the wealthier child. Not because of a lack of love and affection, but because of need. Where the second spouse is being primarily provided for and the children would have to wait for their inheritance, the client should sit down with the children, advise, if it be the case, that his spouse has given him happiness, has eased his children's burden, and he must therefore provide some present benefit for her. When a father leaves a business to a child who helped him develop the business, the non-participating children should be advised of the contributions made by their sibling to the growth of the business, the sharing of the workload and the father's transition into retirement. Explain the alternate means for providing for the child who did not participate in the business.

 Showing concern for children can often be done by naming all of them as fiduciaries, unless there is a very strong reason why this would be inappropriate. This would give each of the children the feeling that they were not being left out. Of course, if there is extreme sibling rivalry, having all of the children as fiduciaries could be disastrous.

 Approximately 3,700 wills a year are probated in the Surrogate's Court of Nassau County and only about 100 of those estates are held up, either because waivers could not be obtained, because the individuals involved were infants or because adult parties refuse to consent to have the propounded instrument admitted to probate. With the assistance of the court, many of these matters are ultimately resolved through settlement or motions for summary judgment.

 The reason why there are not more will contests is that most instruments involving potential contests are prepared by experienced trusts and estates lawyers. A proponent is aided when a will is executed under the supervision of an attorney since there is a presumption of due execution.

 An attorney draftsperson should be extra cautious when he or she anticipates a possible contest due to a distributee either being excluded under the estate plan of the testator or receiving less than his or her distributive share.

 When the attorney draftsperson anticipates the possibility of a contest, he or she should be careful in taking notes regarding the testator's instructions and reviewing those notes with the testator. It would be wise to prepare a draft will and submit it with a concise written explanation of the will provisions, and have the client come in to execute the instrument after the client has reviewed the draft and document of explanation.

Reading Paragraph by Paragraph

 At the will execution ceremony, when a contest is expected, it would be wise for the attorney draftsperson and the other attesting witness, preferably another attorney, paralegal or a secretary who has participated in many will execution ceremonies, to be present during the reading of the will. The will should be read paragraph by paragraph, and an explanation of each paragraph given during the course of the reading.

 Most wills today are admitted to probate based on the Surrogate's Court Procedure Act (SCPA) § 1406 self-proving affidavits, which are usually affixed at the end of a testator's will. Within the affidavit, there is a statement that the decedent had testamentary capacity, meaning that he or she had the capacity to recall those who would be the natural objects of his or her bounty, knew roughly the size of the estate, knew that he or she was about to execute a will and had capacity to know what the will provides. Prior to the utilization of these affidavits, the attesting witnesses had to come to court and give testimony before the Surrogate or his or her designee, including satisfying the court that the decedent had testamentary capacity, in order to prove a will. Under today's practice, SCPA § 1404 examinations are not required unless requested by a party, which is the usual case in contested probate proceedings.

 In a contested probate proceeding, a SCPA § 1404 examination can be crucial in determining the validity of the will, its due execution, proof of testamentary capacity and possible fraud and undue influence. It can be the basis for granting summary judgment on these issues.

 A testator need not have a superior or even an average intellect to execute a will. He or she needs less capacity to execute a will than that required in entering into a contract. However, he or she must know, in a general way, the three elements that constitute testamentary capacity. When the attesting witness signs the SCPA § 1406 affidavit, they are swearing to the fact that, based on their knowledge, the testator had the capacity to know what property he owns, who would be the natural objects of his bounty and what his will provides. Generally, the attesting witness would not know what property the decedent owned, who would be the testator's natural objects of the bounty, nor would the attesting witness know the will provisions. What they are attesting to is that the testator had the capacity to know those things.

When Will Is to Be Contested

 When it is anticipated that there is a good possibility that a will is going to be contested, it would be wise to go further than the ordinary practice in dealing with the attesting witnesses. They should either have conversed with the testator prior to the execution of the will, or they should engage in conversation at the time of the execution of the will, in order for them to be able to testify concerning the three elements of testamentary capacity. It would be wise for the attorney draftsperson to have the attesting witnesses take notes of the ceremony in order to prevent inconsistencies when examinations by contestants are later demanded. Experienced attesting witnesses, unlike next door neighbors, know what to do during the will ceremony. In addition, experienced attesting witnesses, such as paralegals and attorneys, are able to cite office protocol or procedures. Statements such as "I don't recall the particulars but I would NEVER sign the affidavit of attesting witness unless I was satisfied regarding his capacity" are valuable to the proponent especially when uttered by an experienced trusts and estates practitioner.

 The witnesses should take notes as to where the will was executed, when and what time of day the will was executed, a description of the testator, what he or she was wearing, use of eyeglasses or a hearing aid, and whether the testator was aided in any way either by a cane or others assisting with mobility.

 Concerning the decedent's property, in a will contest in Nassau County Surrogate's Court, the attorney draftsperson was asked whether or not he reviewed the testator's property. The attorney draftsperson's reply was no, because he did not want to pry and he thought that was a private matter into which he should not inquire. Needless to say, not only for estate planning purposes is this inappropriate, but also in a will contest, it would be better if the attorney draftsperson and attesting witness could state that the attorney draftsperson discussed the testator's property with the decedent to evidence not only that the decedent had the capacity to know what property he owned at the time of execution, but also to be able to testify based on the testator's information as to what he owned.

 Often we hear that attorney draftspersons do not wish to be attesting witnesses because it would preclude them from handling the contested probate, since they would have to be a witness at the trial. The attorney draftsperson, whether an attesting witness or not, is undoubtedly going to be a witness at trial and, therefore, would be precluded from trying the contested matter. Generally, Surrogates will not preclude the attorney draftsperson from handling the pre-trial proceedings in contested probate matters. Accordingly, an attorney draftsperson should be one of the two attesting witnesses.

 If a will is to be executed in a hospital, it would be wise if the attorney draftsperson could secure a doctor, nurse or other professional to be one of the attesting witnesses.

Videotaping the Ceremony

 When an attorney draftsperson anticipates the possibility of a contested probate, he or she very often will consider videotaping the ceremony. Our experience is that videotaping is a mistake. It is better to allow the trier of fact to use their imagination as to what took place based on the oral testimony and depositions rather than see the ceremony on tape. Often, the tapes are amateurish and usually backfire on the proponent. They often show the testator being in a frail position, having difficulty in answering questions and performing the signing of the will. If videotaping is elected, a professional should be employed to make the tape. Even then, one must be careful as things can get complicated since, unlike Hollywood, the scene cannot be filmed numerous times at numerous angles. As an example, while acting as Surrogate, I tried a contested probate proceeding with a jury and a professional videographer was hired to do the taping. The videographer testified as to the authenticity of the making of the tape. However, during the course of the taping, he had to excuse himself to go to the men's room. The proponent for a period of time operated the camera while the execution of the will took place. Then the professional videographer came back and finished the taping. In my charge to the jury, I had to instruct them to determine when the proponent was doing the taping and that they then were to disregard that portion of the taping because of the Dead Man's Statute, Civil Practice Law and Rules (CPLR) § 4519.

Forthcoming

 In the next article, we will set forth additional means to avoid contested probate.

 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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