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Without a Will, one’s property passes by the laws of intestacy. “Distributees” (i.e., those who would take under intestacy) have a right to be “cited” by the Surrogate’s Court prior to a Will’s admission to probate.  For example, children of a decedent whose Will leaves everything to the wife must be cited, or waive citation, since as distributees they would be entitled to nearly half the estate if the decedent died without a will.

If any distributee fails to execute a waiver, a probate proceeding must occur prior to the will’s being admitted into probate. Prior to such formal proceedings, a potential objectant may demand that depositions be taken of witnesses to the Will, including the drafting attorney. Following these “1404” depositions, the potential objectant must file objections within 20 days.

[Note that unless an objectant would fare substantially better under the laws of descent than under the will, it might be unproductive to mount a challenge. Thus, in the example, had the decedent’s only will left $50,000 plus ½ of the estate to the wife, with the remainder to the children or their issue per stirpes — the same result dictated by the laws of descent in New York — a successful challenge to the will might result in a Pyrrhic victory, since the victorious objectant, be it spouse or child, would receive the same bequest under intestacy, reduced by legal fees.]

Usually, an objectant will allege that the will execution was deficient in some respect, or that the decedent lacked testamentary capacity or was under undue influence. Fortunately, the former grounds for objecting is rarely a problem:  A will whose execution was supervised by an attorney is presumed to comply with the formal requirements of EPTL 3-2.1.

Undue influence and testamentary capacity may be more problematic. A person possesses testamentary capacity to make a will if she (i) is aware of her estate; (ii) knows the natural objects of her bounty; (iii) understands the disposition; and (iv) can form an orderly disposition of her property. See Williams v. Goude, 162 Eng. Rep. 682 (Prerog 1828); Gardner v. Gardner, 22 Wend. 526 (N.Y. 1839).

Various steps can be taken by the testator to deter or defeat a will contest. If a previous will evidences the same dispositive scheme, the old will (or conformed copy) would be probative of the testator’s intent. Testators are routinely advised to destroy the old will upon execution of a new will. However, if a will contest appears possible, it seems prudent to retain the old will since if the objections stand and the later will is denied probate, the previous will could then be admitted. A photocopy of the old will would not be admissible into probate (although it could be probative of intent). If a will is denied probate, and no prior original will can be produced, the testator is deemed to have died intestate. These considerations suggest the tactical prudence of periodically reexecuting a will whose fate may be contested, even — or perhaps especially — where changes are few or none.

If a prior will evidences a different testamentary intent, the importance of establishing testamentary capacity and the lack of undue influence becomes paramount. These two inquiries are interdependent: if the testator’s capacity was diminished, undue influence will be less difficult to establish. Disgruntled distributees are most likely to challenge the will of an elderly person with a serious illness, whose mental facilities have been impaired, and who is making a substantial change in a will. Consequently, a letter or memorandum from the drafting attorney to the client prior to the execution of the will which describes the will provisions and discusses client meetings prior to the will’s execution would likely be admissible as a business record in a probate proceeding and could be quite helpful.

If the will fails to provide for a family member, the instrument might contain language stating that the lack of a disposition to the person has been made after careful thought, and is being made for reasons which are well understood by the family member. The testator might go so far as to state that the person is otherwise well-provided for, and that the failure to provide a bequest does not evidence a lack of love or affection. However, leaving the person a small bequest, such as one dollar (or even a hundred), is probably inadvisable and counterproductive, since it may convey ill-will, or may be viewed as a transparent effort to avoid a will contest, either of which may increase the probability of objections being filed. The foregoing is true irrespective of whether the will contains an in terrorem clause (revoking a bequest to anyone who challenges its size) since the clause may be unenforceable.

While some attorneys advocate the videotaping of a will execution ceremony, this can be a double-edged sword: The appearance on camera of a testator who appears to have even slightly diminished capacity may do more harm than good. However, a letter from a physician who is familiar with the testator and who has performed a recent examination would be a useful document. So too, business or other records indicating the normal activities of the testator at a time coincident with the will execution may be helpful in defeating a claim of diminished capacity or undue influence.