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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…
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