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Protracted legal proceedings by disgruntled descendants and relatives asserting lack of testamentary capacity or undue influence deplete the estate and delay distribution. Therefore, steps taken by the testator before death which minimize the possibility of later challenge are essential. Although somewhat surprising, the mere choice of who witnesses the will execution may later determine the success of a will contest. Favorable testimony given by attesting witnesses at an SCPA § 1404 deposition may facilitate the admission of the instrument into probate, or at least force a favorable settlement.

The ideal witness recalls the ceremony and can testify that statutory procedures were followed. Friends and relatives make poor witnesses, as they are more likely to have competing loyalties to the litigants. Similarly, secretaries may be difficult to locate and may be unfriendly if their employment was terminated. Attorneys and law students, on the other hand, make excellent witnesses. They likely to accurately recall the ceremony and realize the significance of the affidavit made immediately thereafter attesting that “[t]he testator . . . was suffering from no defect of sight, hearing or speech or from any other physical or mental impairment which would affect his capacity to make a valid Will.”

The witnessing attorney should also be present during a portion of the meeting prior to the actual signing to facilitate their giving credible testimony concerning the testator’s capacity and awareness of his current circumstances. Witnessing attorneys might also draft short memoranda detailing their own observations and impressions of the testator.

If the testator’s condition is poor on the scheduled date for signing, consideration might be given to rescheduling the signing. Similarly, a regularly scheduled medical examination coinciding with will execution might help in establishing the testator’s mental capacity. If serious mental capacity concerns exist, an examination by an independent geriatric physician might be considered. Finally, a will signing might be coincident with a family function; this might enable friends or relatives to be in a position to offer favorable testimony.

Mental capacity required to execute a will is substantially less than that required to enter into a contract: The testator need only know the extent of his estate and the natural objects of his bounty. Horn v. Pullman, 72 NY 269 (1878). Nevertheless, may an attorney draft and participate in the execution of a will if the testator appears to be under diminished capacity? The American College of Trusts and Estates, Model Rules of Professional Conduct takes the position that “because of the importance of testamentary freedom, the lawyer may properly assist clients whose testamentary capacity appears to be borderline.”

If diminished mental capacity cannot be asserted, a disgruntled family member may claim undue influence, particularly where the testator left a large portion of his estate to one with whom he cohabited or married. A child might also make such an assertion where a sibling has received a larger portion of the inheritance. Yet it is not uncommon for a testator to leave a significant portion of his estate to one who was kind and attentive to him; nor is it unusual for one to leave unequal shares to various children for a myriad of reasons.

If the drafting attorney suspects undue influence, the testator should be interviewed alone by the attorney. Gifts that seem unusual should be discussed, so that the attorney understands the client’s motive in making the gift. Consideration might also be given to inserting a provision stating that the testator acknowledges that certain persons may not understand the reasons for the disposition chosen, but that the disposition was carefully considered and was not made out of any lack of love or affection by the testator.

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